Jammu & Kashmir High Court - Srinagar Bench
Robkar vs Mr. Shaleen Kabra And Anr on 27 November, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Advance List
Sr. No. 21
IN THE HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
CPSW No. 9900010/2016
Robkar
... Petitioner(s)
Through:- Ms. Ulfat Yousuf, Advocate
V/s
Mr. Shaleen Kabra and Anr.
....Respondents(s)
Through:- Mr. N. H. Shah, Sr. AAG
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
ORDER
There is no compliance report filed. When asked Mr. N. H. Shah, learned Sr. AAG, submits that the orders passed on 28.03.2016 in Contempt No. 363/2011, 11.11.2016 in Contempt No. 06/2016 and 07.09.2016 in Contempt No. 06/2016 are challenged in the Special Leave Petition alongside the COD No. 227/2016 and the Hon'ble Supreme Court in terms of order passed on 08.07.2019, has issued notice in the application for condonation of delay as well as in the Special Leave Petition. The position is also admitted by the other side.
Learned counsel for the petitioner submits that in the year 1998, petitioner had approached this Court with the writ petition but till date has not got the benefit of the Judgment earned. Learned counsel refers the order dated 11.04.2018, wherein this Court while registering the approach adopted by the respondents had asked Commissioner Secretary to Government School Education Department to examine the matter with reference to the Judgment passed by this Court and maintained by the Division Bench of this Court by ensuring implementation of the same. The order passed on 11.04.2018 being relevant is extracted as under:-
The protracted litigation in which the petitioner has been entangled has resulted in his frustration. In the year 1998 the petitioner had approached this court with a writ petition. We are in 2018 and the deadlock seems to have no end because of adamance of the respondents who are tossing the petitioner from one end to another unnecessarily and in blatant violation of the court orders. The case filed by the petitioner to seek protection of his genuine rights has victimized him to the hilt.
The petitioner by the medium of a writ petition, SWP no. 2560/1998 had challenged the selection of private respondents to the post of Teacher which was allowed by this court in terms of final order dated 24th May, 2011. The court had, in the fitness of things, maintained the selection of private respondents and directed the official respondents to consider the case of petitioner Mohammad Amin Waza against the post of Teacher against any available vacancy. It was further directed that since the selection of private respondents is not quashed, eligibility of the petitioner with respect to the age shall be construed from 1998 when the applications were invited with the further direction that petitioner be considered for appointment against any available vacancy within four weeks from the date copy of the order is provided to them.
Respondents had preferred two LPAs' and questioned the judgment dated 24.5.2011 and orders dated 28.03.2016 and 11.04.2016 separately, thus have exhausted the remedy. Both the appeals have been dismissed in terms of orders dated 03.07.2017 and 20.09.2016 respectively.
the operative portion of the compliance report is extracted herein:
"7. That the matter was listed before the Hon'ble High Court on 04.08.2016 wherein the Hon'ble High Court has directed the answering respondent to implement the court judgment and to file compliance report. In response to the said order of the Hon'ble High Court the answering respondent has sent another reminder to Administrative Department dated 08.08.2016 for necessary instuctions/ guidance to proceed further in the matter, the instructions/ guidance are still awaited. Copy of the communications are annexed herein as Annexure-C."
Examining the statement of facts filed from time to time with reference to consideration order rejecting the claim of the petitioner, this court has found the same deficient, therefore, framed the Rule. When asked Mr Sheikh Manzoor, learned Dy.AG, submits that the consideration has reference to the recommendation of the petitioner by the SSRB. The respondents and Mr Sheikh Manzoor, learned State Counsel, appear to have misunderstood the direction as the the consideration for selection and appointment has reference to the available vacancy in 2011 which admittedly was not a requisitioned vacancy to be filled up in 1996. In simple language respondents had to only appoint the petitioner by not joining issues with reference to age and qualification and recommendation of SSRB.
There is a possibility that the present incumbent Commissioner- Secretary to Government, Education Department, might not be aware of the case who has to only place the matter before the concerned authority, Minister concerned for approval. In the confusion created by the authorities of the education department, petitioner is victimized.
In the above background, let the present Commissioner-Secretary to Government Education Department, examine the matter with reference to the judgment passed by this court, maintained by the Division Bench, and ensure implementation of the same by making the appointment of the petitioner against the available vacancy as directed by the writ court.
The exercise shall be completed within a period of four weeks. Registry to convey the order to the Commissioner-Secretary to Government Education Department, for compliance. Copy of the order be also furnished to Mr Sheikh Manzoor, learned Deputy Advocate General for compliance.
List on 16th May, 2018.
Subsequent thereto, on the failure of respondents to comply with the directions, the Court felt constrained to direct appearance of the Commissioner Secretary to Government School Education Department, who appeared on 22.05.2019, and on his undertaking the Commissioner Secretary to Government School Education Department present in the Court, granted further time to report compliance.
On 03.07.2019, the non-compliance of the Judgment/final order was viewed seriously that too after giving undertaking by Commissioner Secretary to Government, School Education Department to implement the same, therefore, two weeks' further time was granted to Commissioner Secretary to Government, School Education Department to report compliance in the matter without fail.
On 20.08.2019, Mr. Shah, learned Sr. AAG when asked about the implementation of the order as undertaken by Commissioner Secretary to Government, School Education Department on the previous hearing, submitted that the respondent State has filed Special Leave Petition, challenging the Judgment passed by the Single Bench as also by the Division Bench, out of which the contempt petition has arisen. He further submitted that the propriety demands that pending decision in the SLP, the contempt proceedings may be deferred. The matter was adjourned because the appearing counsel for the petitioner was not present.
On 15.10.2019, Mr. Shah, learned Sr. AAG was asked to get the latest status of SLP, filed by the respondent Department against the order of which contempt petition has arisen.
On 05.11.2019, Mr. Shah, learned Sr. AAG had sought further two weeks' time' to comply with the order dated 15.10.2019, failing which it was observed that the Court will proceed in the matter. Today, Mr. Shah, learned Sr. AAG, re-iterated his submission that pending decision of SLP, the contempt proceedings for consideration in the contempt petition has to defer. He makes reference to the Judgment delivered by the Hon'ble Supreme Court in case titled Modern Food Industries (India) Ltd. Vs. Sachidanand Dass, reported in 1995 Supp (4) Supreme Court cases 465.
Faced with the situation, learned counsel appearing for the petitioner seeks short adjournment, to come with the stand.
List on Tuesday, viz 03.12.2019.
Copy of the order be provided to learned appearing counsel for the petitioner under the seal and signature of the Bench Secretary.
(Ali Mohammad Magrey) Judge Srinagar 27.11.2019 Mohammad Yasin Dar MOHAMMAD YASIN DAR 2019.11.29 21:44 I attest to the accuracy and integrity of this document