ivil Appeal No 871 of 1986 etc
From the Judgment and Order dated 2911986 of the Patna High Court in Misc
Judicial Case No 356 of 1985
KK Venugopal Jaya Narain RP Singh MP Jha BP Singh Ranjit Kumar Ranjan Dwivedi and PP Singh for the appearing parties
The Judgment of the Court was delivered by KHALID J
These appeals are directed against the Judg ment of a Division Bench of Patna High Court in Misc
case No 356 of 1985
Appeal No 871 of 1986 is by the State of Bihar Appeal No 916 5 jointly by Srideo Mishra Judicial Commissioner Ranchi at the relevant time Secretary cum Legal Remembrancer Depart ment of Law Government of Bihar Patna and Mrs Radha Singh Commissioner Ranchi Division Ranchi at the rele vant time Additional Irrigation Commissioner
 Patna Appeal No 933 by Subh Chandra Jha Public Relation Offi cer Irrigation Department Government of Bihar Patna and Appeal No 1178 by Birkeshwar Prasad Singh now Professor and Head of Department Political Science Magadh University Member Bihar Public Service Commission Patna at the relevant time
The appellants have been convicted by the High Court for contempt of its order and have been sentenced to a fine of Rs50 in default to suffer simple imprisonment for two weeks
The High Court had issued contempt notice against some others also
Those notices were discharged against them
The background facts necessary can be now stated in brief as follows In the Irrigation Department of the State of Bihar there existed a post of Public Officer
This post became vacant some time in 1979
One Arun Kumar Verma was appointed to that post for six months
At that time one Kripalu Shan ker was discharging the functions of Public Relation Offi cer
He laid claim to that post
He did not succeed
The Secretary to the Department did not accede to his request
Therefore he filed CWJC No 3632 of 1979
When the case came up for hearing it was represented on behalf of the State that Shri Verma was appointed only on ad hoc basis for a period of six months and that after the expiry of six months the matter would be referred to the Public Service Commission for consideration and at that stage the case of Kripalu Shankar also will be considered
It is submitted that on this assurance by the State the petition was al lowed to be withdrawn as per order dated 19121979
It appears that this assurance was not respected no reference was made to the Public Service Commission for regular ap pointment and the matter was kept in abeyance for a long time
It is stated that in April 1983 by which time Dr Jagannath Mishra had become Chief Minister the State Gov ernment appointed Subh Chandra Jha as PRO again on ad hoc basis
This gave rise to the filing of petition No 1534 of 1983 which was disposed of on 4583
It was contended that this appointment was made without any advertisement and without consultation with the Public Service Commission
The learned Advocate General informed the Court when the matter came up for heating that the appointment of Jha was only ad hoc giving an impression that regular appointment would be made after the expiry of six months
On this representation the following order was passed by the Court 6 In the circumstances we direct that the post of Public Relations Officer in the Irrigation Department on which respondent 3 has been appointed on ad hoc basis should be filled up in a regular way
In case the appointment is not made within the period of six months the ad hoc appointment shah stand terminated
We further direct that the fact that the respond ent No 3 has worked on the post on ad hoc basis will not be taken to be a qualification for the purpose of any appointment through regular method on the post of Public Relations Officer
 The six months  period according to the above order was to expire on 17101983
The case of the State is that the Irrigation Department had as early as 441983 written to the Public Service Commission to give concurrence to the appointment of Shri Jha since his post was an ex cadre post and since he was selected by a Selection Committee
Concur rence was given on 2485
The Government thereafter exam ined the matter in consultation with the Personnel Adminis trative Reforms Department with reference to the provi sions of the Rules governing reservations
The Government took a decision to send a requisition to the Bihar Public Service Commission for advertising the post
The Commission finally advertised the post on 1251985 setting out the eligibility and criterion for selection
Another Writ Petition was filed in the High Court as CWJC No 235485 with the allegations that the adver tisement was specially drafted to suit only Subh Chandra Jha
The matter was listed for admission on 1361985
During the hearing of this petition the High Court felt on going through the records including the notes file summoned for production by the Court that its direction in CWJC No 153483 was disregarded and therefore rule was issued upon the respondents to show cause why they should not be punished for contempt of the Court for ignoring its order dated 451983 in the above mentioned writ petition
The State of Bihar and the Commissioner cum Secretary Irrigation Department who were respondent nos
1  2 before the High Court expressed regret but at the same time con tended that no contempt had been committed by them for the reason that expression of views in the notings made on the files whether they were right or wrong did not amount to contempt of court and that no order was passed appointing Subh Chandra Jha after 17101983 to invite any contempt action
The third respondent also pleaded similarly and expressed regret for any omission on his part
The Bihar Service Commission and its Executive Officer stated that they had not 7 committed any contempt that Subh Chandra Jha s appointment from 18101983 should be treated as a fresh appointment that they did not know about the order passed in petition No 1534 of 1983 that though concurrence was given it was withdrawn when the correct facts were made known to them and that the withdrawal of the concurrence was duly communicat ed
The other respondents also adopted similar stand in the returns filed by the end
Arguments in the contempt matter were heard for some time and they were concluded on 1281985 and the case was posted for Judgment
The Court went through the Government files and the files of the Bihar Public Service Commission
From the noting in the file the High Court discovered that Mrs Radha Singh the then Additional Irrigation Commission er and Birkeshwar Prasad Singh Member Bihar Public Service Commission and Sanjeevan Sharma Section Officer Bihar Public Service Commission had also a part in the matter
Notices were therefore directed to be issued to them as well
They appeared and were heard on 2591985
The High Court considered the question of contempt on the following facts which accord ing to it were undisputed i The ad hoc appointment of SC Jha must be terminated on 17101983 as per its order
ii He was still working as PRO with the acquiescence of the concerned officers
iii Concurrence of the Public Service Commission was sought for his fresh ad hoc appointment
iv The Public Service Commissioner gave concurrence to the ad hoc appointment from October 1983 by its order in May 1985
The High Court expressed itself of what it felt about the disobedience of its order in para 4 of the Judgment as follows The State Government has ignored the order of the High Court
It had therefore to be made party
The Irrigation Commissioner cum Secre tary is responsible for every act of his Department
It was therefore but natural that the proceeding should be drawn up against him also
Shrideo Mishra Legal Remembrancer was proceeded against as he advised the State Government on 10101983 to seek concurrence from the Commission in the fresh ad hoc ap pointment of Subh Chandra Jha knowing ball well the dictate of 8 this Court that services of Subh Chandra Jha must be terminated after the expirty of six months
Incidentally it may be stated once again that the six months period had expired on 17101983
The Public Service Commission and the Special Executive Officer thereof have been proceeded against for granting concur rence to the Ad hoc appointment of Subh Chan dra Jha
Subh Chandra Jha himself has been proceeded against for master minding the whole affair
Proceeding is against him too on that score
The proceeding was initiated against AU Sharma on the footing that he was the Irrigation Commissioner in October 1983 when the service of Subh Chandra Jha had to be terminated
That is how the contemners have been proceeded against
 The High Court found the officers guilty for the reasons given below in Paragraph 22 of the Judgment which we read so that the approach of the High Court could be properly appreciated
It is necessary to consider the submission urged by learned Advocate General on behalf of the officers of the State and the public service commission
The General submission was that notings did not represent the con cluded decision of the Government and there fore the officers were not liable for con tempt of court
The proposition advanced by learned Advocate General is rather too wide
A Government file is not an individual s private property
It is public property
The opinions expressed therein are liable to reduce the credibility and the binding nature of the orders passed by the High Court and that would amount to denigration of the State Judiciary
No officer has the right to abuse the High Court or to ignore the orders passed by the High Court
I do not for a moment contend that for every noting in the file contrary to the view taken by the High Court will amount to contempt of court
It will depend upon the nature of the view noted in the file and whether the nothings are intended to set the High Court s order at nought mali ciously
In the present case the order of the High Court was explicit
The Advocate General had advised explicitly that taking any steps to appoint Subh Chandra Jha ad hoc would amount to contempt of court and yet the offi cers were busy trying to find out how to ignore the High Court order
When the High Court s direction was to make the regular appointment through the 9 BPSC where was the occasion for seeking concurrence of ad hoc appointment of Subh Chandra Jha
The whole file gives the impres sion that the officers in the state were not reconciled to the orders passed by the High Court
I am therefore unable to hold that some of the officers were not liable for contempt of court After considering the factual matrix before the Court the Court held that there was no disobedience of its order by the Government and that the Government had taken a deci sion not to continue the ad hoc appointment but observed as follows The State of Bihar as a jurisdic person has certainly not committed contempt
Because their Chief Minister Shri Chandresekhar Singh wrote on 81
1984 that the High Court order must be obeyed
On 103
1984 the Chief Secretary noted that Shri Jha should not be granted ad hoc appointment  the State of Bihar therefore cannot be held to be guilty of contempt of this Hon ble Court   After this finding the High Court held some of the officers of the Government guilty solely on the basis of the views expressed by them in the files which were not in fact accepted by the Government and which were only at the stage of suggestions and views
Shri KK Venugopal the learned counsel for the State contended that it would be unsafe to initiate action in contempt merely on the strength of notings by officials on the files expressing their views and to do so would imperil the working of various depart ments in a Government in a democracy and would have far reaching consequences
Some times a view expressed by an officer may be incorrect
The view so expressed passes through various hands and gets translated into action only at the ultimate stage
The views so expressed are only for internal use
Such views may indicate the line of thinking of a particular officer
Until the views so expressed culmi nate into an executable order the question of disobedience of Court s order does not arise
Though the State Government have been found not guilty the State has filed the appeal to protect its officers from independent and fearless ex pression of opinion and to see that the order under appeal does not affect the proper functioning of the Government
It cannot be disputed that the appeal raises an impor tant question of law bearing upon the proper functioning of a democratic Government
A Government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels ultimately getting finality at the hands of the Minister 10 concerned
Till then conflicting opinions views and sug gestions would have emanated from various officers at the lower level
There should not be any fetter on the fearless and independent expression of opinions by officers on mat ters coming before them through the files
This is so even when they consider orders of courts
Officers of the Govern ment are often times confronted with orders of courts impossible of immediate compliance for various reasons
They may find it difficult to meekly submit to such orders
On such occasions they will necessarily have to note in the files the reasons why the orders cannot be complied with and also indicate that the courts would not have passed these orders if full facts were placed before them
The expression of opinion by the officers in the internal files are for the use of the department and not for outside expo sure or for publicity
To find the officers guilty for expressing their independent opinion even against orders of courts in deserving cases would cause impediments in the smooth working and functioning of the Government
These internal notings in fact are privileged documents
Notings made by the officers in the files cannot in our view be made the basis of contempt action against each such officer who makes the notings
If the ultimate action does not constitute contempt the intermediary suggestions and views expressed in the notings which may sometimes even amount ex facie disobedience of the courts orders will nor amount to contempt of court
These notings are not meant for publi cation
In our considered view the internal notes file of the Government maintained according to the vales of business is a privilege document
if the Government claims privilege or quasi privilege regarding the notes file we will not be justified in rejecting the claim outright
In this case the notes file was brought to the Court not voluntarily by the Government
It was summoned for by the Court
The Court can always look into it
The right of the Court to look into any files can never be denied
The contents of the notes file brought to Court got communicated to the Court because the Court looks into it
It would be dangerous to find an action for contempt for the views expressed in the notes file on the discovery of unpleasant or unsavory notes on a perusal of the notes file by the Court after getting them summoned
This would impair the independent functioning of the civil service essential to democracy
This would cause impediments in the fearless expression of opinion by the officers of the Government
The notings on files differ from officer to officer
It may well be that the notes made by a particular officer in some cases technically speaking is in disobedi ence in an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him
To rely upon the notings in a file for the purpose of initiat 11 ing contempt in our view therefore would be to put the functioning of the Government out of gear
We must guard against being over sensitive when we come across objec tionable notings made by officers sometimes out of inexpe rience sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved
Now the functioning of Government in a State is gov erned by Article 166 of the Constitution which lays down that there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution in his dis cretion
Article 166 provides for the conduct of Government business
It is useful to quote this Article 166
1 All executive action of the Govern ment of a State shall be expressed to be taken in the name of the Governor
2 Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Gover nor and the validity of an order or instru ment which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor
3 The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion
 Articles 1661requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor
This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification
It prescribes the mode in which an executive action has to be expressed
Noting by an official in the departmental file will not therefore come within this Article nor even noting by a Minister
Every executive decision need not be as laid down under Article 1661 but when it takes the form of an order it has to comply with Article 1661
Article 1662 states that orders and other instruments made and executed under Article 1661 shall be authenticated in the manner prescribed
While clause 1 relates to the mode of expression clause 2 lays down the manner in 12 which the order is to be authenticated and clause 3 re lates to the making of the rules by the Governor for the more convenient transaction of the business of the Govern ment
A study of this Article therefore makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor authenticated in the manner provided in Article 1662
Viewed in this light can it be said that what is con tained in a notes file can ever be made the basis of an action either in contempt or in defamation
The notings in a notes file do not have behind them the sanction of law as an effective order
It is only an expression of a feeling by the concerned officer on the subject under review
To exam ine whether contempt is committed or not what has to be looked into is the ultimate order
A mere expression of a view in notes file cannot be the sole basis for action in contempt
Business of a State is not done by a single offi cer
It involves a complicated process
In a democratic set up it is conducted through the agency of a large number of officers
That being so the noting by one officer will not afford a valid ground to initiate action in contempt
We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt
It would not in our view constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub section c of Section 2 of the  which defines civil contempt
Expression of a view is only a part of the thinking process preceding Government action
In the case of Bachhittar Singh vs The State of Punjab 1962 Suppl
3 SCR 713 a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file
which order was not communicated
This Court relying upon Article 1661 of the Constitution held that the order of the Revenue Minister PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said Article and was then communicated to the party concerned
This is how this Court dealt with the effect of the noting by a Minister on the file The question therefore is whether he did in fact make such an order
Merely writing some thing on the file does not amount to an order
Before something amounts to an order of the State Government two things are necessary
The order has to be expressed in the name of the Governor 13 as required by clause 1 of Article 166 and then if has to be communicated
As already indicated no formal order modifying the decision of the Revenue Secretary was ever made
Until such an order is drawn up the State Government cannot in our opinion be regarded as bound by what was stated in the file
As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones
 This Court observed in this Judgment that business of State is a complicated one and has necessarily to be con ducted through the agency of a large number of official and authorities
Before action is taken by the authority con cerned in the name of the Rajpramukh which formality is a Constitutional necessity nothing done would amount to an order creating rights or casting liabilities on third par ties
It is possible observed this Court that after ex pressing one opinion about a particular matter at a particu lar stage a Minister or Council of Ministers may express quite a different opinion which may be opposed to the earli er opinion
In such cases which of the two opinions can be regarded as the order of the State Government
It was held that an opinion becomes a decision of the Government only when it must be communicated to the person concerned and that this is the essence of the matter
We seek support from these observations for our purpose that notings in a notes file not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Article 1661 and 2 and communicated to the person concerned
In England absolute privilege is given to statements made by one officer of a State to another and such state ments are protected in the context of law of defamation
Section 123 of the Evidence Act deals with privilege
We have already stated that State communications or acts of State in Public interest enjoy privilege and if that be so disclosure in such communications made to the court will not constitute either contempt or defamation
In any case such internal communications enjoy quasi privilege and a disclo sure in such communications cannot be made the basis of an action in contempt
We have seen how the High Court approached the whole question from paragraph 22 extracted early in the Judgment
It is clear that the High Court based its conclusion purely on the notings in the file
The High Court felt that the officers of the Govern 14 ment did not like the orders passed by it and this accord ing to the High Court was evident from the files before it
The High Court summed up its conclusion as follows in para graph 24 of the Judgment To sum up contempt of this Court has been committed by Shri Deo Mishra Legal Remem brancer Mrs Radha Sinha IAS then working as Additional Commissioner Irrigation Depart ment and now working as Additional Finance Commissioner Dr Birkeshwar Prasad Singh Sanjeewan Sharma and Subh Chandra Jha and I convict them accordingly
In regard to sen tence I am clearly of the view that there was motivation for it
The hand of the moving spirit has however remained concealed
It appears that the feeling amongst high officers of this state is that the High Court will not punish them for contempt of the High Court as they are high officers and that all that the High Court will do in case of contempt of court is to give lectures and at times rant at them
To remove this misconception it is essential to impose upon them a fine of Rs50 Rupees fifty each on all the five persons mentioned above in default to suffer simple imprisonment for two weeks
The rule issued against JC Kundra AKM Nassan
AU Sharma and Arjun Prasad is discharged
 We see that the High Court felt that there was an at tempt on the part of the officers to disobey its orders
The officers had tendered apology
This was not accepted
We are concerned more than anyone in upholding the dignity and prestige of the High Court but we have a duty at the same time to lay down the law correctly
We feel that the convic tion entered by the High Court purely on the basis of the notes file cannot be justified
The High Court was under the impression that all the officers acted in unison to help the 5th respondent
We now deal with his case separately
He is described by the High Court as the Kingpin of the whole drama and according to the High Court everybody concerned acted for his benefit
There is a veiled suggestion that he would not have achieved what he wanted except with the help of political forces and that there is an un seen hand behind what he achieved
He was found guilty of abetting the contempt
According to him he has been made a scape goat that his is an unfortunate case of a journalist appointed as Public Relation Officer on ad hoc basis for six months as recom mended by a selection commit 15 tee at an interview held along with seven other candidates
He joined service after such a selection on 18 4 1983
As per the order of the High Court the period of six months for making the regular appointment to his post was to expire on 17 10 1983
Long before this date the Irrigation Depart ment had written to the Public Service Commission stating that the post held by the appellant was an ex cadre post and that concurrence may be accorded for his appointment
This was an internal letter
The Government sent a requisition to the Public Service Commission for advertising the post on 10 8 1984
The Commission ultimately made the publication on 12 5 1985 stating the eligibility and criteria for selec tion
It was this publication that promoted the filing of the writ petition in question in which the order that gave rise to the contempt proceeding was passed
Regular appoint ment pursuant to the advertisement was stayed
The appellant thus continued at the post
According to him he has not disregarded the order of the High Court
The Bihar Public Service Commission gave concur rence for his appointment for six months
The post of PRO being an ex cadre post since its creation in 1955 the post could not be filled up by giving promotion to anyone working in the department
It was constituted to interview candi dates and to recommend a suitable person
The appellant continues to function on the strength of the orders passed in his favour and he cannot be held to have committed con tempt of the High Court s order
He has stated that he had no notice in the writ petition filed by Kripalu Shankar or the writ petition from which the present contempt arise
Though he was made a party no notice was ever issued to him and no direction was given to him by the High Court
Accord ing to him apart from a general observation that he abetted in disregarding the order of the High Court nothing specific has been attributed to him
His unqualified apology was also not accepted by the High Court
He also relies upon the fact that he was not paid salary from 18 10 1983 to date in re inforcement of his submission that he has not committed any contempt
With respect to the learned Judges we find it difficult to agree wholly with them regarding the finding that the appellant was guilty of contempt
We do not have sufficient materials before us to conclude that the appellant exercised political clout to further his interest in utter disregard of the orders of the Court
Although it may be said that the conduct of the appellant is in some measure suspect we do not find sufficient justification to enter a finding that he is guilty of contempt and that he acted in utter disregard of the High Court s order
It is useful to remember that apart from the notes file there is no indepen 16 dent material before us to held that the appellant had committed contempt
The Government pleader and the Advocate General had clearly advised the Government to act in accord ance with the directions given by the High Court
The Minis ter who is the ultimate authority also acted in obedience to the orders of the High Court
That being so we find it difficult to agree with the finding that he is guilty of criminal contempt
The High Court felt that his was not a fit case to accept the unqualified apology tendered
Howev er we find that on materials placed before us it is not proved beyond doubt that he had committed contempt
We would therefore give him benefit of doubt and purge him of the contempt found against him
We would like to outline the general principle on which confidentiality of State documents should be protected
The general principle is that if a person is involved in litiga tion the Courts can order him to produce all the documents he has which relate to the issues in the case
Even if they are confidential the Court can direct them to be produced when the party in possession does not produce them for the other side to see or at any rate for the Court to see
When the Court directs production of those documents there is an implied understanding that they will not be used for any other purpose
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved
Miss Harman s case Home office vs Harman may give some assistance for this aspect of our discus sion
The facts are as follows Miss Harman a Solicitor acted for a criminal Michael Williams who was in prison serving a long sentence for robbery of the bank
He complained that he was subjected to cruel and unusual punishments while in prison contrary to the Bill of Rights and accordingly brought an action for damages against the Home Office
Miss Harman acted for him as a legal aid counsel
Miss Harman got an order for discov ery against the Home Office
The Home Office did not raise any objection regarding the production of the documents
However it objected the use of the documents by the Group called The National Council for Civil Liberties
Accord ingly the documents were brought to Court and they were read out in open Court
Miss Harman passed the bundles of the documents to a journalist and a write up appeared in The Guardian  which was highly critical of the Home Office
The Home 17 Office took proceedings against Miss Harman for contempt of Court
She was held guilty for contempt by the High Court and was confirmed by the Court of Appeal and by the House of Lords
In the Court of Appeal Lord Denning despite his liberal views while upholding the right of the Court to read documents relating to cases while conceding also the liberty to those present in Court to listen when those documents were read and the reporter to take down what was read did not extend to the press a right to any further use of the confidential documents or any further dissemination of their contents without the consent of the owner
It is of no use to plead the freedom of the press he said that freedom is itself subject to restriction
Public confiden tial documents it was said should be kept confidential in the public interest and should not be exposed to the ravages of outsiders
When the House of Lords  decision in Harman vs Secretary of State for the Home Department upholding the Court of Appeals was rendered there was great hue and cry that the ruling meant a black day for press freedom  
Even so Lord Denning regretted that the Court ever ordered disclosure of the documents and observed that the legal milestone will have to be taken up and set back a bit In Bachittar Singh s case supra privilege was claimed regarding the production of which was sought embodied the minutes of the meetings of the Council of Ministers showing the advice which the Council ultimately give to the Rajpra mukh
This Court held that these documents fell within the category of documents relating to the affairs of State within the meaning of Section 123 of the Evidence Act and were protected under the said Section
Though the ratio of this decision outlines the conservative view in the law relating to privilege we are not unmindful of the fact that the doctrine of privilege received a shock treatment against the State at the hands of this Court in the Judges  case SP Gupta  Ors
vs Union of India and others etc
etc 1982 2 SCR 365
May we say that the legal milestone in Gupta s case also needs a retreat a bit
Before parting with this case we would like to observe the need for restraint and care in dealing with the internal files of the Government
We have already indicated its privileged position and limited areas where exposure is permissible of the notings in the file
This is not to say that absolute privilege can be claimed of its exposure and protection from the view of Courts
But what is to be borne in mind is that the notings in the departmental files by the hierarchy of officials are meant for the independent dis charge of official duties and not for exposure outside
In a democracy it is absolutely necessary that its steel frame in the form of civil service is permitted to express itself 18 freely uninfluenced by extraneous considerations
It might well be that even orders of Court come in for adverse re marks by officers dealing with them confronted with diffi cult situations to straight away obey such orders
Notings made on such occasions are only for the benefit of the officers concerned
When a subordinate official commits a mistake higher official will always correct it
It is neces sary for Courts also to view such notings in the proper perspective
In this case the Court after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file
That way the Court would have enhanced its prestige
It will not serve either the healthy working of the civil service public interest or democratic norms to pro ceed in contempt against officials solely on the basis of minutes in the internal files notings which might even be unsavory or even derogatory to an order of the Court but which get ultimately corrected by the head of the depart ment ending with an order under Article 1661 and 2 in the name of the Governor in the proper form
We are con scious of the fact that the learned Judges felt that there was a deliberate attempt to act against their order
We are not unmindful of the indignation shown by them at the not ings in the file
The only reason why we feel constrained to disagree with the High Court s order is our anxiety to delineate the limits of judicial power while dealing with files of the Government and also of the Public Service Commission a high Constitutional authority
It is necessary to have mutual respect among the various wings of the admin istration in the process of disposal of justice
We allow these appeals and discharge the contempt orders passed by the High Court with utmost reluctance in view of the far reaching consequences that would flow if the judg ment was allowed to stand
We are happy that the appellants have tendered their regret and apology to the High Court and have reiterated their regret in this Court also
HLC Appeals allowed


Summary:
The first Respondent who was discharging the functions of a Public Relations Officer in the Bihar Irrigation De partment when that post fell vacant in 1979 filed a writ petition claiming the post for himself when another person was appointed to that post for six months
At the time of hearing it was represented on behalf of the State that the other person had been appointed only on ad hoc basis for a period of six months and that after the expiry of that period the matter would be referred to the Public Service Commission and that at that stage the case of the first Respondent would also be considered
On this assurance the petition was allowed to be withdrawn on 19th December 1979
However the assurance was not respected and no reference was made to the Public Service Commission for making a regular appointment to the post and in April 1983 yet another person was appointed to the post again on ad hoc basis and the same was challenged by another writ peti tion
When that petition was heard the Advocate General informed the High Court that the appointment was only ad hoc and gave the impression that a regular appointment would be made after the expiry of six months and on that representa tion the High Court disposed of the petition on May 4 1983 directing inter alia that the post should be filled up in a regular way and that in case the appointment was not made within a period of six months the ad hoc appoint ment shall stand terminated
The six months  period was to expire on October 17 1983 and according to the State Government the Irrigation Department had written to the Public Service Commission on April 4 1983 to give concur rence to the appointment of the ad hoc incumbent since it was an ex cadre post and he had been selected by a Selection Committee but that the concurrence was given only on
April 2 1985 and thereafter the matter was further examined with reference to the provisions of the Rules governing reserva tions and a decision was taken to send a requisition to the Public Service Commission for advertising the post
Accord ingly the post was advertised on May 12 1985 setting out the eligibility criteria for selection to the post
The 2 advertisement was challenged by yet another petition on the ground that the eligibility criteria had been so drafted as to suit only the ad hoc incumbent of the post
The High Court which summoned the relevant records from the Govern ment felt on their examination that the direction given by it while disposing of the earlier writ petition on May 4 1983 had been disregarded and issued notices to the appel lants calling upon them to show cause why they should not be punished for contempt for ignoring the order dated May 4 1983
The appellants expressed regret but contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files wheth er they were right or wrong did not amount to contempt of Court as no order had been passed appointing the ad hoc incumbent after October 17 1983
The officials of the Public Service Commission pleaded that the appointment of the ad hoc incumbent from October 18 1983 should be treated as a fresh appointment that they did not know about the order passed by the High Court and that though concurrence was given it had been withdrawn when the correct facts were made known to them
The High Court after going through the relevant files of the State Government and the Public Service Commission came to the conclusion that although the State of Bihar as a juristic person was not liable for contempt for the reason that the Chief Minister had minuted that its order must be obeyed and the Chief Secretary had noted that the ad hoc incumbent should not be granted further ad hoc appointment the appellants inspire of the advice of the Advocate Gener al that taking any step to appoint the ad hoc incumbent would amount to contempt of Court were busy trying to find out how to ignore its earlier order
The High Court further observed that when its earlier direction was that regular appointment should be made through the Public Service Com mission there was no occasion for seeking the concurrence of the latter for the appointment of the ad hoc incumbent
According to the High Court the whole file gave the impres sion that the appellant Officers were not reconciled to the orders passed by it earlier
In these premises the High Court convicted the appellants for contempt and the ad hoc incumbent of the post for abetting contempt sentencing each of them to a fine of Rs50 in default to suffer simple imprisonment for two weeks
Allowing the appeals and discharging the contempt orders passed by the High Court HELD Notings made by officers in the files cannot be made the basis of contempt action against each such officer who makes the notings
10D 3 i A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels ultimately getting finality at the hands of the Minister concerned
Till then conflicting opinions views and suggestions would have emanated from various officers at the lower level
There should not be any fetter on the fearless and independent expression of opin ions by officers on matters coming before them through the files
The expression of opinion in internal files are for the use of the department and not for outside exposure or for publicity
To find officers guilty for expressing their independent opinion even against orders of courts in de serving cases would cause impediments in the smooth func tioning of the Government
9H 10A C ii Officers of the Government are often confronted with orders of courts which are impossible of immediate compliance for various reasons
They may find it difficult to meekly submit to such orders
On such occasions they will necessarily have to note in the files the reasons why the orders cannot be complied with and also indicate that the Court would not have passed those orders if full facts were placed before them
The notings differ from officer to officer
It may well be that the notes made by a particular officer technically speaking is in disobedience of an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him
We must guard against being over sensitive when we come across objectionable notings made by officers some times out of inexperience some times out of over zealousness and some times out of ignorance of the nuances of the question of law involved
11A B iii The functioning of the Government in a State is governed by article 166 of the Constitution
A study of this Article makes it clear that the notings in a file get culmi nated into an order affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor and authenticated in the manner provid ed in article 1662
Viewed in this light it cannot be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation
The notings in a notes file do not have behind them the sanction of law as an effective order
It is only an expression of a feeling by the concerned officer on the subject under re view
To examine whether contempt is committed or not what has to be looked into is the ultimate order
The expression of opinion in notes file at different levels by concerned officers will not constitute Criminal Contempt it would not constitute Civil Contempt either for the reason that mere expression of a view or suggestion will not bring it within the vice of sub section
c ors
2 of the  12A E 4 Bachhittar Singh vs State of Punjab 1961 Supp
3 SCR 713 relied on
iv The internal notes file of the Government main tained according to the Rule of Business enjoys quasi privilege and a disclosure in such communications cannot be made the basis of an action in contempt
The general princi ple on which confidentiality of State documents should be protected is that if a person is involved in litigation the Courts can order him to produce all the documents he has which relate to the issues in the case
Even if they are confidential the Court can direct them to be produced when the party in possession does not produce them for the other side to see or at any rate for the Court to see
When the Court directs production of these documents there is an implied understanding that they will not be used for any other purpose
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved
10E F Home Office vs Harman  Harman vs Secretary of State for the Home Department and SP Gupta  vs Union of India 1982 2 SCR 365 referred to
v In this case the Court after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file
That way the Court would have enhanced its prestige
18B C