Jammu & Kashmir High Court - Srinagar Bench
Robkar vs Dr. Mushtaq Ahmad Shah on 6 November, 2023
Serial No. 10
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CPC No. 01/2010 in
CRREF No. 04/2007
Dated: 6th of November, 2023.
ROBKAR
... Petitioner(s)
Through: -
None.
V/s
Dr. Mushtaq Ahmad Shah,
S/O Pir Gh. Mohammad Shah
R/O Hamza Colony near Masjid Sharief,
Bemina, Srinagar
(Former Principal, Govt. Medical College,
Srinagar.)
... Respondent(s)
Through: -
Mr M. Y. Bhat, Senior Advocate with Ms Urba Naseer, Advocate. CORAM:
HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE (ORDER)
01. The learned District Judge, Srinagar made a reference to this Court for initiation of contempt proceedings against the Respondent, namely, Dr. Mushtaq Ahmad Shah, the then Principal Government Medical College, Srinagar on 10th of August, 2007, with the accusation that the Respondent had been fully disobedient to the direction dated 4 th of May, 2007 passed by the Court in Civil Miscellaneous Appeal titled 'Fayaz Ahmad Fayaz v. Mohammad Afzal Bhat & Ors.', whereby the Respondent had been asked to relieve Shri Mohammad Afzal Bhat-
Respondent No.1 in the appeal from the post of Lecturer (Statistics), Government Medical College, Srinagar, so that the Petitioner, who was Page 2 of 6 CPC No. 01/2010 in CRREF No. 04/2007 Appellant before the Court, was in a position to join his duties as Lecturer (Statistics), pursuant to Order No. 13-Edu of 2007.
02. The factual matrix of the case is that Mr Mohammad Afzal Bhat-Respondent No.1 before the First Appellate Court was, vide Order No. 852-Edu of 2004 dated 21st of October, 2004, sent on deputation as Lecturer (Statistics) in Government Medical College, Srinagar, for a period of two years. The Respondent, in wake of student unrest triggered by the conduct of Mr Bhat, relieved Mr Bhat vide Order dated 11 th of October, 2006. The Respondent did not leave his post and instead, on 13 th of October, 2006, instituted a civil Suit in the Court of learned Judge Small Causes, Srinagar, questioning the Order dated 11th of October, 2006. The learned Judge Small Causes, Srinagar did not pass any interim orders on the date the application for temporary injunction was filed and adjourned the matter to 10th of November, 2006, when the trial Court was informed by the Standing Counsel for the Respondents that the Respondent was interested in having the services of Mr Bhat at Government Medical College, Srinagar and directed the Applicant (Mr Bhat) to be continued on deputation and paid regularly. In the meantime, the Director, School Education, Kashmir, as a follow up to the relieving Order dated 11th of October, 2006, vide Order No. 1670-DSEK of 2006 dated 24th of November, 2006, posted Mr Bhat as Lecturer in Government Higher Secondary School, Chanapora. Mr Bhat obviously did not leave Government Medical College, Srinagar nor did he join at Government Higher Secondary School, Chanapora.
03. The Government, vide Order No. 13-Edu of 2007 dated 15th of January, 2007, cancelled the deputation of Mr Bhat to Government Medical College, Srinagar and directed him to report to the Education Department. Mr Fayaz, sent on deputation in place of Mr Bhat to Government Medical College, Srinagar, submitted his joining report on 21 st of January, 2007, however, his joining report was not entertained by the Respondent. Thereafter, Mr Fayaz sought permission to file an appeal against the Order dated 10th of November, 2006 of the learned Judge Small Causes, Srinagar, to whom the permission was granted on 27th of February, 2007 and the Page 3 of 6 CPC No. 01/2010 in CRREF No. 04/2007 Appellate Court, after considering the Civil Miscellaneous Appeal, set aside the Order dated 10th of November, 2006 and directed the Respondent No.3 to relieve Mr Bhat from the post of Lecturer. The Appellate Court noticed that Mr Bhat was sent on deputation by his parent Department, i.e., the Education Department to Government Medical College, Srinagar, thereafter, recalled to be replaced by Mr Fayaz and that mere willingness/ desire on the part of the Respondent to retain Mr Bhat was of no consequence. The First Appellate Court, accordingly, directed that Mr Bhat shall stand relieved from the Government Medical College, Srinagar as per the orders of the Government.
04. After the Order dated 4th of May, 2007 of the First Appellate Court, the Administrative Department of the Respondent, on becoming aware of the Court Order vide communication No. ME/GAZ/28/2005 dated 7th of May, 2007, asked the Respondent to allow Mr Fayaz to join and relieve Mr Bhat. The Respondent, instead of relieving Mr Bhat on 9 th of May, 2007, issued an order permitting Mr Fayaz to join, but at the same time, allowed Mr Bhat to continue as Mr Bhat was said to have obtained some orders from the Minister concerned.
05. Mr Fayaz, aggrieved that the Respondent had flouted and disobeyed the Court Order dated 4th of May, 2007, filed an application on 11th of May, 2007, for initiation of contempt proceedings against the Respondent. The learned First Additional District Judge, Srinagar issued notice to the Respondent, afforded him an opportunity to submit his Objections and, after going through the record and hearing the parties, arrived at the conclusion that the Respondent had committed Contempt of Court. The conduct of the Respondent, according to the learned Judge, amounted to disobedience and violation of Court Order and fell within the realm of Contempt of Courts Act. It is against the aforesaid backdrop that the refence, which was erroneously styled as Criminal Reference, had been made.
06. This Court, vide Order dated 18th of December, 2009, recorded its satisfaction from the pleadings available on the file that the Respondent Page 4 of 6 CPC No. 01/2010 in CRREF No. 04/2007 has committed civil Contempt within the meaning of Section 2(b) of the Jammu & Kashmir Contempt of Courts Act, 1997, by wilfully disobeying the Order dated 4th of May, 2007 passed by the learned 1st Additional District Judge, Srinagar, as such, reference was accepted and answered with a direction to the Registry to frame Rule against the Respondent asking him to show cause as to why he should not be dealt with and punished for the civil contempt committed by the Contemnor/ Respondent herein as stated, in accordance with law.
07. In compliance to the aforesaid direction dated 4th of May, 2007 passed by this Court, the above titled Robkar was framed and Rule was issued against the Respondent by the Registry, thereby asking the Respondent to show cause as to why he should not be dealt with and punished for civil Contempt committed by him.
08. Pursuant to notice having been issued by this Court, the Respondent filed the detailed Reply to the Robkar, inter alia, asserting therein that Mr Fayaz was not qualified to be a Lecturer in the subject of Statistics in the Department of Social Preventive Medicine, whereas Mr Bhat was qualified for the said post, but still, in order to avoid the controversy and to show the compliance of the Court orders and the administrative directions, the Respondent allowed Mr Fayaz to continue as Lecturer, Statistics in the Department of Social Preventive Medicine and Mr Bhat was retained in the same Department of Social Preventive Medicine on the post of Lecturer, Sociology, lying vacant for a pretty long time. This is stated to have been done only to show the compliance of the Court orders and the administrative directions.
09. It is further stated that the Respondent was essentially under multiple axes viz. firstly, two orders from the civil Courts: one directing the Respondent to treat Mr Bhat to be deemed as relieved and to allow Mr Fayaz to continue on the post of deputation, and the other directing the Respondent to allow Mr Bhat to continue on his post. Secondly, the Administrative Department directing the Respondent to comply with the Court orders with regard to Mr Fayaz and also allowing Mr Bhat to Page 5 of 6 CPC No. 01/2010 in CRREF No. 04/2007 continue in Government Medical College, Srinagar. The Respondent claims to have tried his best through correspondence and various meetings with the Administrative Department to resolve the problem requesting the Government and the Medical Council of India to intervene in the matter with regard to the issue of deputation of a person who is qualified for the post and the same person to be retained in the Government Medical College. Thirdly, it is pleaded that in the year 2006-07, there were frequent inspections of Medical Council of India in various departments of Medical College, Srinagar for regularization and continuance of recognition and de- recognition by Medical Council of India and the Respondent was under the administrative compulsion so as to save the de-recognition of various departments by showing Mr Bhat as Lecturer, Statistics, thereby protecting the interests of the students of Post-Graduate Level. It is also stated by the Respondent that he has always been submissive in showing compliance to the orders of the Courts and has never ever tried to violate any orders of any Court. The Respondent pleads to have the highest regard of the orders passed by the Court and it is because of this that he allowed Mr Fayaz to continue on the post as per the directions of the learned 1st Additional District Judge, Srinagar, though he was not competent to hold the post of Lecturer in the Department of Social Preventive Medicine, Government Medical College, Srinagar and Mr Bhat was allowed to continue in the Government Medical College, Srinagar as per the Order dated 26 th of July, 2007 passed in SWP No. 1024/2007.
10. Heard learned Counsel for the Respondent and perused the pleadings on record.
11. From the perusal of the pleadings on record, it appears that the Respondent was faced with a dilemma on the issue of posting of both Mr Bhat and Mr Fayaz, inasmuch as, there was multiple litigation having been initiated by both the aforesaid persons. The Respondent, in his Reply filed to the present Robkar, has also referred to Order dated 26 th of July, 2007 passed by this Court in a Writ Petition filed by Mr Bhat, being SWP No. 1024/2007, wherein a direction was issued to allow the Petitioner/ Mr Bhat Page 6 of 6 CPC No. 01/2010 in CRREF No. 04/2007 to continue till the next date of hearing before the Bench. The Respondent appears to have got confused as to which direction of the Court he had to implement. That apart, the learned Counsel for the Respondent submits that the Respondent has since attained the age of superannuation and has tendered an unconditional apology in the event his conduct has resulted in any alleged disobedience/ violation of any Court order. The Respondent, as per the learned Counsel, has always tried to uphold the majesty of law by implementing the orders passed by the Court at all times.
12. In view of the foregoing analysis, more particularly the unconditional apology having been tendered by the Respondent through his Counsel, the proceedings initiated against the Respondent by way of the present Robkar are, accordingly, dropped.
13. Disposed of.
(M. A. CHOWDHARY) JUDGE SRINAGAR November 6th, 2023 "TAHIR"
i. Whether the Order is speaking? Yes.
ii. Whether the Order is reporting? Yes.