Jammu & Kashmir High Court - Srinagar Bench
Sarfaraz Ahmad Bhat vs . State And Ors. on 22 April, 2019
Bench: Ali Mohammad Magrey, Rashid Ali Dar
Serial No. 01
Suppl.
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No. 32/2019
IA No. 01/2019
Date of order:- 22.04.2019
Sarfaraz Ahmad Bhat Vs. State and Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Rashid Ali Dar, Judge
Appearance:
For the appellant(s) : Mr. B. A. Bashir, Sr. Advocate with Ms. Falak
Bashir, Advocate
For the Respondent(s) : Mr. Altaf Haqani, Advocate for 3
Ms. Asifa Padroo, AAG for 1
Mr. Rayees-u-Din Ganai, GA for 2
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Magrey, J: Oral;
1. This Letters Patent Appeal is directed against the ad-interim ex-parte
order passed by the learned writ Court on 11.03.2019, in SWP No. 460/2019, in
terms whereof the learned writ Court on recording the submission of the
appearing counsel for the respondent No.3-writ petitioner, directed the official
respondents not to act upon the impugned order of promotion dated 23.01.2019,
made in favour of the appellant-respondent No. 3 in the writ petition.
Brief Facts:-
2. Respondent No. 3-writ petitioner, namely Mohammad Shafi Tantray, is stated to have filed a writ petition SWP No. 460/2019, challenging the Government order No. 35-HUD of 2019 dated 23.01.2019, in terms whereof appellant-respondent No. 3 in the writ petition has been confirmed as Revenue Officer of the Urban Local Bodies, Kashmir in the pay band of Rs. 9300- 34800+ GP 4280 (unrevised), besides other grounds on the ground that the order is in violation of the interim orders passed by the learned Single Bench in the writ petition SWP No. 1910/2012 on 12.09.2012, staying the consideration of further promotion in favour of the appellant-respondent No. 3 in that writ petition.
3. Learned writ Court on noticing the submissions of the counsel appearing for writ petitioner that the impugned order in terms whereof, the appellant has been confirmed as Revenue Officer, has been made in violation of the interim order passed in writ petition SWP No. 1910/2012 on 12.09.2012, while issuing notice to other side, had directed the official respondents not to act upon the impugned order dated 23.01.2019 in respect of the appellant-respondent No. 3.
4. Mr. B. A. Bashir, learned senior counsel appearing for appellant submits that the order is illegal, as the respondent No. 3-writ petitioner has no case to maintain the writ petition for the relief claimed, simply on the ground that no cause of action has accrued to him with reference to confirmation of the appellant as Revenue Officer in terms of the Government order, (Supra). It is submitted that the respondent No. 3-writ petitioner had the only remedy to challenge the order by seeking amendment in the pending writ petition SWP No. 1910/2012, in which he had sought quashment of order No. DULB/Estt/644 of 2010 dated 04.10.2010, in terms whereof the appellant was placed as Incharge Revenue Officer at Municipal Council, Sopore in his own pay and grade.
5. Mr. B. A. Bashir, learned senior counsel further submits that the respondent No. 3-writ petitioner has no claim against the appellant, as he is far senior to him.
6. Mr. Altaf Haqani, learned counsel appearing for the respondent No. 3, has raised preliminary objections regarding maintainability of the Letters Patent Appeal, which as per him is not maintainable, as the order impugned is an ex- parte order. He further submits that the order in terms whereof, the appellant has been confirmed as Revenue Officer amounts to promotion in violation of the rights of the respondent No. 3, therefore, a fresh cause of action has accrued to respondent No. 3 to challenge in the writ petition. He would further submit that the official respondents have in violation of the order passed by the writ Court in the earlier writ petition of respondent No. 3-writ petitioner, passed the order by mere mentioning that the life of the stay order has expired after six months with the application of the orders passed by the Hon'ble Apex Court in criminal appeal Nos., 1375-1376 of 2013 titled Asian Resurfacing of Road Agency Pvt. Ltd and Anr. Versus Central Bureau of Investigation.
7. Mr. Altaf Haqani, learned appearing counsel for respondent No. 3 further submits that Letters Patent Appeal is not maintainable against the interlocutory order. He further submits that in the event the appellant is aggrieved of the impugned order, the proper course for the appellant was to seek vacation, alteration or modification of the impugned order before the writ Court. Learned counsel in this regard referred to and relied upon the Judgment reported as AIR 1972 J&K 124 titled Astral Traders Vs. State and Ors.
8. We have heard learned counsel for the parties, perused the records and considered the matter. We deem it proper to dispose of the appeal at this stage without calling for the returns of the respondents, in view of the nature of the impugned order being ad-interim and subject to objections and the writ petition pending disposal before the writ Court. We have registered the submissions of learned counsel for the parties. We refrain to make any observation or finding on such submissions, as the parties have yet to file the returns in the writ petition. We cannot also render decision in the appeal on the recorded submissions of the learned counsel for the parties, merely because that will prejudice the case and render the lis before the writ Court as infructuous. The writ Court has only passed the ad-interim order which is otherwise subject to objections and the appellant can any time seek modification, alteration or vacation of the order or the dismissal of the writ petition on the grounds projected. The Letters Patent Benches does not ordinarily interfere with the interlocutory orders of the writ Court. The proper course, as adopted by the LPA Benches, as a precedent, is to avoid entertaining the Letters Patent Appeal at the ad-interim stage and let the aggrieved party seek modification, alteration or vacation of order or the dismissal of the writ petition on the permissible legal grounds, In this connection, reference is made to case reported as 2010 (3) JKJ 552 delivered in case titled Shivam Enterprises v. Res. of Village Govindsar, Kathua and Ors.
9. In the above background, we dispose of the instant Letters Patent Appeal in following manner:-
i. All the respondents, in the writ petition shall file reply within ten days before the writ Court. Appellant is at liberty to file an application seeking vacation, alteration or modification of the impugned order. In the event any application is filed by the appellant along with objections to the writ petition, the writ Court is requested to take up the matter on priority and pass orders on hearing the parties on the next date of hearing. ii. Let the writ petition along with all applications be listed on 04.05.2019, before the same learned Single Bench, which has passed the impugned order.
The Letters Patent Appeal is, accordingly, disposed of.
(Rashid Ali Dar) (Ali Mohammad Magrey)
Judge Judge
Srinagar
MOHAMMAD YASIN DAR
22.04.2019
2019.04.22 23:43
I attest to the accuracy and
Mohammad Yasin Dar
integrity of this document