When an appeal and a stay application are pending, the court whose order is in contempt may adjourn the contempt proceedings to enable the Appeal Court to hear out the stay application, thereby preventing the appeal from becoming infractuous and ensuring a just and fair resolution of the matter.

( 1 ) THIS contempt application arises out of the order dated 10th September, 1998, passed by me on the writ application filed by the petitioners herein disposing of the same with certain directions for absorption of the writ petitioners in Group-D posts under the respondents.

( 2 ) WHEN the contempt application was moved, it had been submitted on behalf of the alleged contemnors/opposite parties that an appeal had been preferred by the respondents against the aforesaid order, together with an application under section 5 of the Limitation Act for condonation of the delay in filing the appeal. Since then, the application for condonation of delay has been allowed, and an application for stay of the order appeal against is pending decision.

( 3 ) APPEARING on behalf of the alleged contemnors/opposite parties, Mr. Rathin Das took a preliminary objection as to whether the contempt proceedings should be continued with during the pendency of the appeal and the stay application filed therein. Mr. Das urged that in the instant case the very purpose of filing the appeal would be rendered meaningless and the appeal and the stay application would become infractuous if the writ petitioners were allowed to enforce the order appealed against before the stay application could be heard out.

( 4 ) MR. Das, however, submitted that in the given circumstances it would be for the Court to decide as to whether or not the contempt proceedings should be continued before the stay application in the appeal was heard. Mr. Das also urged that during the pendency of the contempt proceedings the alleged contemnors/opposite parties have already taken up the preliminary task of scrutinising the names submitted by the petitioner No. 1.

( 5 ) IN support of his submission Mr. Das. firstly referred to the decision of the Hon'ble Supreme Court in the case of Modern Food Industries (India) Limited and Another v. Sachidanand Dass and Another, reported in 1995 Supp (4) SCC 465, herein in similar circumstances the Hon'ble Supreme Court held as follows:-"before the High Court, appellants urged that before any contempt proceedings could be initiated, it was necessary and appropriate for the Division Bench to examine the prayer for stay, or else, the appeal itself might become infractuous. This did not commend itself to the High Court which sought to proceed with the contempt first. We are afraid, the course adopted by the High Court does not commend itself as proper. It without considering the prayer for stay, obedience to the single Judge's order was insisted upon at the pain of committal for contempt, the appellants may find, as has now happened, the very purpose of appeal and the prayer for interlocutory stay infractuous. It is true that a mere filing of an appeal and an application for stay do not by themselves absolve the appellants from obeying the order under appeal and that any compliance with the learned single Judge's order would be subject to the final result of the appeal. But then the changes brought about in the interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice, wherever the order whose disobedience is complained about is appealed against and stay of its operations is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at lease simultaneously with the complaint for contempt. To keep the prayer for stay stand-by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. This is the view taken in State of J and K v. Mohd. Yaqoob Khan. "

( 6 ) AS will appear from the above extract from the aforesaid judgment, the Division Bench relied on an earlier decision of a three-Judges Division Bench of the Hon'ble Supreme Court in the case of State of J and K v. Mohd. Yaqoob Khan, reported in 1993 (4) SCC 167, wherein also it was observed that the High Court should ha