Jammu & Kashmir High Court - Srinagar Bench
Tsetan Dolker vs Zahoor Ahmad Bhat And Others on 15 September, 2020
Bench: Chief Justice, Puneet Gupta
1
S. No. 210
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 81/2020
CM No. 2598/2020
(Through Video Conferencing)
Tsetan Dolker
.... Appellant.
Through: Mr. Rahul Pant, Advocate.
v.
Zahoor Ahmad Bhat and others
.... Respondents
Through: Mr. Syed Faisal Qadri, Advocate, for R-1.
Mr. Asif Maqbool, Dy. A.G., for R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
15.09.2020
1. By way of the instant Letters Patent Appeal the appellant has assailed the order dated 31.12.2019 passed by the learned Single Judge in CCP (S) No. 588/2019 titled Zahoor Ahmad Bhat v. Talat Parvez Rohilla and another. There is no dispute with regard to the material facts and we notice the admitted facts hereafter.
2. It appears that the appellant and respondent no. 1 had participated in a selection process for the post of Assistant Professor, Botany, in the Higher Education Department which was conducted by the Jammu & Kashmir Public Service Commission pursuant to a notification dated 27th of October, 2017. With regard to the selection, the J&K Public Service Commission had issued a provisional selection list on 15th of July, 2019. The respondent no. 1 herein challenged the provisional select list by way of writ petition [WP (C) No. 2637/2019]. It is pointed out by Mr. Syed Faisal Qadri, learned counsel for the writ petitioner that by an interim order dated 02.08.2019, the SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 2 selection of the present appellant (respondent no. 4 in the writ petition) was stayed.
3. So far as the provisional select list was concerned, the official respondents invited objections from all the concerned candidates and respondent no. 1-writ petitioner filed objections thereto which was not accepted.
4. On 24th of September, 2019 the official respondents are stated to have issued a final select list. Premised thereon, an order dated 25th of October, 2019 was passed whereby the appellant was appointed as Assistant Professor in Botany in Government P.G. College for Women, Gandhi Nagar, Jammu, by the official respondents. It has been stated that pursuant thereto, the appellant had duly joined services in October, 2019 itself.
5. A subsequent Government Order No. 57-JK (HE) of 2019 dated 17.12.2019 was passed by the official respondents placing the services of the petitioner at the disposal of the University of Ladakh, in the Union Territory of Ladakh.
6. Mr. Rahul Pant, learned counsel for the appellant has drawn our attention to the order dated 18th of December, 2019 whereby the appellant was relieved from the Government P.G. College for Women, Gandhi Nagar, Jammu, for joining before the Registrar, University of Ladakh, Union Territory of Ladakh.
7. Instead, the respondent no. 1 has filed a contempt petition [CCP (S) No. 588/2019] titled Zahoor Ahmad Bhat v. Talat Parvez Rohilla and another complaining that the official respondents had violated the interim order dated 02.08.2019 passed in a writ petition [WP (C) No. 2637/2019] in selecting the respondent no. 4 to the post in question.
8. While issuing notice in the contempt petition on 31 st December, 2019, the learned Single Judge passed an interim order:
"This contempt petition is filed alleging violation of order dated 2 nd of August 2019 passed by this court in WP(C) No. 2637/2019: CM No. 5143/2019, in terms whereof, it was directed that the selection of the respondent No. 4 against the post of Assistant Professor, Botany in the Higher Education Department made by the Public Service Commission vide notification dated 15th of July, 2019, shall remained stayed.SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 3
Mr Syed Faisal Qadri, the learned counsel, representing the petitioner, submits that notwithstanding the aforesaid order dated 2nd of August, 2019, passed by this Court, the respondents have issued Government Order No. 57 JK (HE) of 2019 dated 17 th of December, 2019, whereby the respondent No. 1 has issued posting order of respondent No.4 in the writ petition as Assistant Professor (Botany).
Prima facie, the respondents appear to have committed contempt of Court by violating the aforesaid order dated 2nd of August, 2019 passed by this Court in WP (C) No. 2637/2019: CM No, 5143/2019. In the first instance, let notice go to the respondents, returnable by or before the next date of hearing.
List on 10th of March, 2020.
Meanwhile, the operation of the Government Order No. 57 JK (HE) of 2019 dated17th of December, 2019 qua the respondent No.4 in the writ petition, i.e., Tsetan Dolker, shall stay."
9. Aggrieved thereby, the present appeal has been filed by the appellant.
10. Mr. Rahul Pant, learned counsel for the appellant would contend that this submission was completely fallacious and without any merit. It is submitted that by the order dated 02.08.2019 the Court had stayed the appointment of the appellant. This appointment arose out of the provisional selection of the appellant. After that, the official respondents had examined the objections to the provisional select list including those filed by the respondent no. 1, rejected the same and issued the final select list.
11. We find that both the final select list dated 24th September, 2019 as well as appointment order dated 25th of October, 2019 are not the subject matter of any challenge by the respondent no. 1-writ petitioner.
12. Insofar as the impugned order dated 31st of December, 2019 is concerned, the learned Single Judge has observed that prima facie the respondents appeared to have violated the order dated 02.08.2019 passed in writ petition [WP (C) No. 2637/2019] and thereafter directed that operation of the Government Order No. 57-JK (HE) of 2019 dated 17.12.2019 shall stay qua the respondent no. 4 in the writ petition (the present appellant).
13. It is submitted by Mr. Rahul Pant, learned counsel for the appellant that the order of stay dated 31.12.2019 passed by the learned Single Judge is completely without jurisdiction. Reliance is placed on the pronouncement of SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 4 the Supreme Court reported at (2004) 13 SCC 610 V. M. Manohar Prasad v. N. Ratnam Raju. Mr. Rahul Pant, learned counsel for the appellant, submits that in view of the law laid down in this pronouncement, the instant appeal is maintainable and further the order of the learned Single Judge dated 31.12.2019 is not sustainable in law.
14. On the other hand, appearing for the private respondent no. 1, Mr. Syed Faisal Qadri, Advocate, has contended that the official respondents could not have issued the Government order dated 17.12.2019 which was in violation of the interim order dated 02.08.2019 and the learned Single Judge was justified in staying the operation of the Government order dated 17.12.2019.
15. Appearing for the official respondents, Mr. Asif Maqbool, learned Dy. A.G., has contended that in view of the order passed in the contempt petition [CCP (S) No. 588/2019], the Secretary to the Government, Higher Education Department has issued a Government Order bearing No. 51-JK (HE) of 2020 dated 21.01.2020 putting the Government order dated 25.10.2019 in abeyance.
16. We are further informed that insofar as the writ petition being [WP(C) No. 2637/2019] is concerned, the same has been transferred to the Central Administrative Tribunal, Jammu Bench, Jammu, and is fixed for hearing on 13.10.2020.
17. Given the facts brought on record especially the submission of Mr. Rahul Pant, learned counsel for the appellant that the final select list dated 24th of September, 2019 was finalized after considering the objections of the respondent no.1-writ petitioner to the provisional select list as well. There is admittedly no challenge to this final select list by the writ petitioner. Even the appointment order issued on 25th of October, 2019 is not a matter of challenge before any Court.
18. We find that the learned Single Judge while passing the impugned order dated 31.12.2019 has not adverted to the basic order of appointment of the appellant dated 25th of October, 2019 whereby the appointment was offered to her.
SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 519. In this regard, in (2004) 13 SCC 610 V. M. Manohar Prasad v. N. Ratnam Raju, the Supreme Court held as follows:
"7. XXX Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 : 2002 SCC (L&S) 703] and Notified Area Council v. Bishnu C. Bhoi [(2001) 10 SCC 636 : 2002 SCC (L&S) 1018] . There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief.
8. The learned counsel for the employees in some of the appeals, submit that the Division Bench has held that no appeal would lie against the order of the Contempt Judge since no one was punished for contempt. We find the argument to be fallacious. If a direction is given by a court without jurisdiction, against such orders an appeal would lie to a court normally exercising the appellate jurisdiction. XXX
20. In view of the dicta of the Supreme Court in V. M. Manohar Prasad v. N. Ratnam Raju (2004) 13 SCC 610, clearly, it was not open to the learned Single Judge to pass any further direction in the contempt petition. If at all the respondent no. 1-writ petitioner had any grievance, the appropriate legal proceedings had to be initiated with regard to the final select list and appointment order. In the contempt matter, the learned Single Judge could have only proceeded to make an order strictly in accordance with the Contempt of Courts Act.
21. However, in the present case, we have been informed on behalf of the official respondents that they have issued the Government Order bearing No. 51-JK (HE) of 2020 dated 21.01.2020 putting the Government order dated 25.10.2019 in abeyance in compliance to the order passed by the learned Single Judge in the Contempt Petition [CCP (S) No. 588/2019]. The writ petitioner does not appear to have made any grievance with regard to the order dated 25.10.2019. Even the learned Single Judge dealing with the contempt petition, has not passed any order with respect to either the final select list dated 24.09.2019 or the appointment order dated 25.10.2019.
SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 622. In view thereof, the order dated 31.12.2019 has to be set aside and quashed.
It is so directed. Our order would bind the respondents.
23. Given the limited nature of challenge before us, we are not commenting upon the same. We leave it open to the parties to agitate their grievances and contentions on the merits of the actions of the official respondents by way of appropriate legal proceedings.
24. Inasmuch as the present matter relates to appointment to the post of Assistant Professor, Botany, in the University, there is urgency in the matter. The Central Administrative Tribunal shall ensure that the matter before it is heard and adjudicated at the earliest.
25. We make it clear that nothing herein contain shall be considered as an expression of opinion on the merits of the case and the contentions of the parties.
This appeal and all pending applications are disposed of in the above terms.
(PUNEET GUPTA) (GITA MITTAL)
JUDGE CHIEF JUSTICE
SRINAGAR
15.09.2020
TASADUQ
SAB:
SYED TASADUQ QADRI
2020.09.18 12:33
I attest to the accuracy and
integrity of this document