Jammu & Kashmir High Court - Srinagar Bench
Mohammad Sidiq Lone And Ors vs Sh. Bishwajit Kumar Singh on 15 July, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CCP(S) No.287/2021
Reserved on: 13.07.2022.
Pronounced on: 15.07.2022.
Mohammad Sidiq Lone and ors
..... petitioner (s)
Through :- Mr. R.A.Jan Sr. Advocate with
Mr. Taha, Advocate
V/s
Sh. Bishwajit Kumar Singh .....Respondent(s)
Through :- Mr. Ileyas Laway, G.A.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
1 The judgment dated 28.07.2015 passed by this Court in SWP No. 2649/2013 still awaits compliance by the respondent. Almost seven years have passed, the respondent has been avoiding to comply with the said judgment on one pretext or the other. Way back in the year 2016, the petitioners feeling aggrieved by the non-compliance of the judgment aforesaid filed CPSW No. 233/2016 seeking to initiate contempt proceedings against the respondent therein.
2 On being put on notice in the contempt petition, the respondent filed a compliance report and also placed on record a copy of Government Order No. 386-Edu of 2016 dated 05.10.2016, in terms whereof, the claim of the petitioners was rejected. This Court hearing the contempt petition did not accept the compliance report and prima facie found the respondents having committed the contempt of this Court. Accordingly vide order dated 23.05.2018, notice was issued to the respondents to show cause as to why they should not be punished for committing the contempt of Court. The said order 2 CCP(S) 287/2021 was called in question by the respondents before the Division Bench in LPA No. 166/2020 which was dismissed by the Division Bench vide its order dated 31.12.2020 as not maintainable. The Division Bench also concurred with the view taken by the Single Bench whereby it had rejected the compliance report and the consideration order dated 05.10.2016 placed on record and clarified that, other than determining the eligibility of the respondents (petitioners herein) to hold the posts of Head Master under the Jammu and Kashmir Education (Gazetted) Service Recruitment Rules, 1992 ['the Rules of 1992'] from a particulate date, there was no option with the appellants other than regularizing the services of respondents as Head Master retrospectively from the date they had officiated against the said posts.
3 With the dismissal of the appeal aforesaid by the Division Bench vide its order dated 31.12.2020, the matter came up for consideration before the Court hearing the contempt petition. However, as is evident from order dated 23.02.2021 passed in Contempt petition No. 233/2016, it was disposed of by the Court on the ground that the incumbent-respondent against whom the contempt proceedings were initiated, had either retired or transferred to some other office. The petitioners, however, were given liberty to approach the new incumbent for seeking implementation of the judgment (supra), providing further that if the judgment passed by this Court was not complied with, they would be at liberty to file appropriate proceedings for implementation of the judgment in accordance with law. This is how the instant contempt petition has been filed by the petitioners after exhausting their remedy of approaching the new incumbent.
4 This Court took cognizance of the instant contempt petition and issued notice to the respondent on 12.07.2021. Mr. Shah Amir, the then AAG 3 CCP(S) 287/2021 for the UT of Jammu and Kashmir caused his appearance on 07.09.2021 and sought time to file the compliance report. Thereafter, several opportunities were prayed for by the respondent and were granted by this Court from time to time. On 07.05.2022, this Court gave the respondent two weeks last and final opportunity to file the compliance report indicating the manner in which the case of the petitioners had been considered, providing further that in case the updated compliance report was not filed, the Commissioner-Secretary to Government, School Education Department, would appear in person on the next date of hearing. As is apparent from order dated 07.05.2022, the last opportunity of two weeks was granted pursuant to the statement made by Ms. Asifa Padroo, learned AAG, appearing for the respondent, that the DPC was scheduled to be convened on 13.03.2022 and she was not aware as to whether the case of the petitioners had been placed before it and considered or not.
5 In an earlier compliance report filed by Sh. B.K. Singh, Principal Secretary to the Government, School Education Department, it was submitted on affidavit that the case of the petitioners was under process in the Department for placing the same before the review DPC, to be convened within one month. Be that as it may, the respondent has now filed the compliance report and has also placed on record a copy of Government Order dated 27.06.2022 in which he has reiterated his earlier stand that the case of the petitioners stood considered in the DPC, held in the year 2012, in pursuance of which, the consideration order i.e Government Order No. 386-Edu of 2016 dated 05.10.2016 was passed least realizing that the earlier compliance report filed and the Government Order dated 05.10.2016 placed on record stood rejected by both the Single Bench as well as the Division Bench of this Court. 4
CCP(S) 287/2021 The respondent herein is adamant on his stand and has, thus, committed clear contempt of this Court. The judgment, of which violation is alleged in this contempt petition, was passed on 28.07.2015, whereas the DPC by the respondent-Department stood convened in the year 2012 and the promotions of Masters as Head Masters stood made vide Government Order No. 318 Edu of 2012 dated 02.08.2012. For the reasons best known to the respondent(s), the aforesaid Government order was not set up as a defence in the writ petition. The writ petition, as a matter of fact, was not seriously contested by the respondents by filing any reply affidavit. The Court, taking note of the averments made in the writ petition and the documents placed on record allowed the writ petition by holding as under:
"Denial of regular promotion to the post of Head Masters on regular basis has infringed the rights of the petitioners guaranteed under Article 16 of Constitution of India. The respondents are under Constitutional and Statutory obligation to accord consideration to the claim of regularization of services of the Head Masters from the date they have become eligible in terms of recruitment rules"
6 As is correctly held by the Division Bench, in view of the aforesaid categoric observations made by the Writ Court, the respondent had no option, but to regularize the services of the petitioners as Head Masters from the date they had attained the eligibility under the Rules of 1992. There is no denying the fact that the petitioners had officiated as Head Masters/equivalent from the year 1997, 1998 & 2002 to 2008 and had remained in officiating capacity for several years. It was nowhere the case of the respondent(s) that the officiating promotions given to the petitioners were not against the vacant posts, nor is it the plea of respondent(s) anywhere that the petitioners, at the relevant point of time, were not eligible to hold the posts. There is also no 5 CCP(S) 287/2021 averment to indicate that, as per their seniority position, they were not entitled to hold the posts on the dates they were promoted on officiating basis. Absent such stand taken by the respondent(s), either in the writ petition or even in the compliance report now filed, this Court is left with no option, but to prima facie conclude that the respondent is guilty of willfully flouting the directions passed by this Court and, therefore, in contempt.
7 The compliance report as also the Government Order placed on record is, thus, rejected. The Registry shall frame a 'Robkar' and issue formal notice to Sh. Bishwajit Kumar Singh, Principal Secretary/Commissioner- Secretary to Government, Education Department, Civil Secretariat, Jammu/Srinagar to show cause as to why he be not punished for committing the contempt of this Court for willful disobedience and non-compliance of the judgment passed by this Court on 28 th July, 2015 in SWP No. 2649/2013. The respondent-Commissioner-Secretary shall remain present in person in this Court on the next date of hearing.
List on 16.08.2022.
(SANJEEV KUMAR)
JUDGE
Srinagar
15.07.2022
Sanjeev Whether order is speaking: Yes
Whether order is reportable: Yes