Jammu & Kashmir High Court - Srinagar Bench
Robkar vs Mr Shaleen Kabra & Anr on 4 December, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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 & Anr.
..... Respondent(s)
Through: -
Mr N. H. Shah, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
ORDER
04.12.2019
01. This case appears to be a prime example of the age-old adage:
'Justice delayed is justice denied'.
02. The petitioner, alongwith others, filed SWP No.2560/1998, which, vide judgment dated 24th of May, 2011, was allowed by this Court directing the respondents to consider the case of the petitioner No.7 therein/ petitioner herein for appointment against any available vacancy within four weeks from the date copy of the order is provided to them. Thereafter, since the said judgment was not complied with by the respondents, the petitioner herein filed contempt petition, being CPSW No.363/2011. During the pendency of the contempt petition, in the year 2016, i.e. after a period of more than five years from the date of passing of the aforesaid judgment, the respondent State filed an appeal against the said judgment alongwith the application seeking condonation of delay in filing the appeal before the CPSW No. 9900010/2016 Page 1 of 6 Division Bench of this Court. The Division Bench, in terms of judgment dated 3rd of July, 2017, after hearing the parties, while rejecting the application for condonation of delay, dismissed the appeal as barred by time. Accordingly, the contempt petition was taken up for consideration, wherein in terms of order dated 28th of March, 2016, this Court observed as under:
"Till date the petitioner has not been appointed on the post of teacher. Prima facie, the respondent-Director and Chief Education Officer have violated the Court judgment.
Registry to frame rule against these two authorities. They be asked to show cause as to why they shall not be punished for violating the Court judgment.
List on 11th April, 2016. Meanwhile, reply to the show cause notice.
Registry to forthwith serve the copy of the rule and copy of this order on the aforesaid authorities."
In the aforesaid backdrop, Robkar No. 06/2016 has been framed by the Registry against Director, School Education, Kashmir and Chief Education Officer, Budgam.
Thereafter, by order dated 7th of September, 2016, this Court observed as under:
"Compliance report has not been filed. Even Commissioner Secretary to Government, Education Department has not appeared before the Court.
Prima facie, the Court judgment has been violated.
Registry to frame Rule against the Commissioner Secretary to Government, Education Department. The said authority shall appear in person before the Court on 22nd September, 2016. The said authority shall file reply to the Rule to show cause as to why he shall not be punished for violating the Court judgment."CPSW No. 9900010/2016 Page 2 of 6
Accordingly, Robkar No. 29/2016 stands framed against Commissioner/ Secretary to Government, Education Department.
03. Subsequently, having regard to the fact that the petitioner has approached this Court with the writ petition in the year 1998, i.e., more than 20 years ago, and that the judgment has been passed in his favour by the Writ Court as back as in the year 2011, i.e., 8 years ago, a series of orders has been passed by this Court from time to time directing the respondents to implement the judgment, subject matter of the contempt petition, passed by this Court, however, despite that the said judgment has remained unimplemented so far. The respondents, time and again, have sought adjournments in the matter; firstly, on the ground that the appeal is pending before the Division Bench, which appeal, subsequently, got dismissed in the year 2017 and, secondly, the respondents, on appearance before this Court on 22nd of May, 2019, have raised the argument that the Government has challenged the order of the Division Bench before the Supreme Court in a Special Leave Petition (SLP).
04. In terms of order dated 15th of October, 2019, Mr Shah, the learned Senior Additional Advocate General, representing the respondents, was directed to get the latest status of the Special Leave Petition filed by the respondent Department before Hon'ble the Supreme Court against the order subject matter of the contempt petition. Again, on 5 th of November, 2019, time was sought by Mr Shah to comply with the order dated 15 th of October, 2019, whereafter, the matter was listed on 27th of November, 2019, on which CPSW No. 9900010/2016 Page 3 of 6 date, too, Mr Shah reiterated his submission that pending decision in the Special Leave Petition before the Apex Court, consideration in the contempt petition has to defer in view of judgment delivered by Hon'ble the Supreme Court in case titled 'Modern Food Industries (India) Ltd. v. Sachidanand Dass; 1995 Supp (4) Supreme Court Cases 465'. Faced with the said situation, the learned counsel for the petitioner had sought short adjournment to come up with her stand on 3rd of December, 2019, i.e., today.
05. Today, when the matter came up for consideration, the learned counsel for the parties argued at length on the issue as to whether consideration in the contempt proceedings need to be deferred in view of pendency of appeal before the Apex Court, wherein, admittedly, only notice has been issued. The learned counsel, in support of their respective cases, made reference to various judgments governing the subject.
06. Having heard the learned counsel for the parties, coupled with appreciation of the law referred to and relied upon by the parties, I am of the considered view that mere preferring of an appeal does not operate as stay on the judgment/ order appealed against. A prayer for the grant of proceedings or on the execution of order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. Ordinarily, the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the CPSW No. 9900010/2016 Page 4 of 6 event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still, the question which the Court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the order appealed against and/ or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.
07. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an application for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. This view is fortified by the judicial dictum rendered by Hon'ble the Apex Court in case titled 'Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd; (2005) 1 Supreme Court Cases 705'.
CPSW No. 9900010/2016 Page 5 of 6
08. Reverting back to the facts and circumstances of the case on hand, in absence of any stay of the judgment subject matter of the contempt petition in the proceedings initiated by the respondents before Hon'ble the Supreme Court, this Court is unable to stop its hands from proceeding ahead with the contempt petition. It being so, let the Officers, against whom Robkar has been issued, viz. (i) Commissioner/ Secretary to Government, Education Department (Ms Sarita Chauhan); (ii) Director, School Education, Kashmir (Mr Mohammad Younis Malik); and (iii) Chief Education Officer, Budgam (Ms Fatima Bano), appear in person before the Court on the next date of hearing to explain as to why they shall not be punished for violating the judgment of the Court.
09. List again on 23rd of December, 2019.
10. Registry to forthwith send a copy of this order to Commissioner, Secretary to Government, Education Department; Director, School Education, Kashmir; and Chief Education Officer, Budgam, copy whereof shall also be provided to Mr N. H. Shah, learned Senior Additional Advocate General under the seal and signatures of the Bench Secretary of this Court, today itself.
(Ali Mohammad Magrey) Judge SRINAGAR December 4th, 2019 "TAHIR"
CPSW No. 9900010/2016 Page 6 of 6 TAHIR MANZOOR BHAT 2019.12.04 14:58 I attest to the accuracy and integrity of this document