Jammu & Kashmir High Court
Santokh Singh vs State And Others on 28 August, 2018
Equivalent citations: AIRONLINE 2018 J AND K 134
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CPSW No. 123/2013 in SWP No. 1608/1992
IA Nos. 1/2015, 2/2015, 1/2017, 1/2018, 2/108,
3/2018, 4/2018, 5/2018 and 6/2018.
Date of order:28.08.2018
Santokh Singh
Vs.
State and others
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Appearance:
For the petitioner(s) : Mr.R.A.Jan, Sr. Adv with Mr.Rajnish Oswal,
Advocate and Mr.Anuj Dewan Raina, Advocate.
For the respondent(s) : Mrs. Seema Shekhar, Sr. AAG and Mr. Vishal Bharti,
Dy.AG
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The genesis of the controversy raised in this Contempt
Petition lies in the decision of this Court dated 17.04.1996
rendered in SWP No.529 of 1992 titled Triloki Nath Bhat
and others v. State of J&K and others. This was a
petition filed by the District and Sessions Judges of the
State, seeking inter alia the removal of pay anomaly
created by Jammu and Kashmir Pay Revision Rules, 1992
issued vide SRO No.75 of 1992 dated 30.03.1992.
2. The precise grievance of the District Judges in the petition
was that the grade of District Judges and the Selection
Grade District Judges should have been at entries in
CPSW No. 123/2013 Page 1 of 12
S.Nos. 25 and 26 of the Schedule appended to the Rules
and should not have appeared against S.Nos. 23 and 25 as
was reflected in the said Schedule. The plea of the District
Judges succeeded and a Bench of this Court quashed the
Schedule in so far as it fixed the Pay Scale of District
Judges and Selection Grade District Judges by reference
to entries 23 and 25 and directed the respondents to treat
the District Judges and the Selection Grade District
Judges to be and always to have been in the pay scale as
appearing at entry Nos. 25 and 26 respectively. They were
also held entitled to all the consequential benefits
including the payment of arrears of salary. The direction
issued by the Court in the petition filed by in as many as
36 District and Sessions Judges was made applicable to
all other District Judges and Selection Grade District
Judges, who were not even party petitioners in the said
petition. The judgment rendered was thus a judgment in
rem. For facility of reference, the relevant extract of the
operative portion of the directions issued in SWP
No.529/1992 are reproduced here under:-
"........................................................
.................................................................
These directions shall be applicable in respect of the petitioners and all other District Judges and the District judges (Selection Grade), of course, in accordance with and depending upon the dates of their appointments.
No orders as to costs.
CMP No.1178/1992 shall stand disposed of."
CPSW No. 123/2013 Page 2 of 123. Indubitably, the judgment aforesaid was a judgment in rem and was applicable to all the District Judges and the Selection Grade District Judges of the State. There is no dispute that the judgment passed by the Single Judge was later on upheld by the Division Bench of this Court as also by the Hon'ble Supreme Court and, therefore, attained finality.
4. After having lost in all the forums, respondents, though reluctantly, complied with the judgment and issued SRO 163 dated 13.06.2005 and accordingly placed the District and Sessions Judges and the Selection Grade District and Sessions Judges in the pay scales existing at entry Nos. 25 and 26 respectively. The relevant extract of SRO 163 of 2005 also needs to be noticed:-
"SRO 163.........
In the said Rules, a proviso shall be incorporated in Schedule to SRO 75 dated 30.03.1992:
"The Selection Grade District and Sessions Judges and District and Sessions Judges/Additional District and Sessions Judges only shall be deemed to have been placed in the pay scale of Rs.5100-150-6300 and 4500-150-5700 in place of Rs.3300- 5050 and 3150-4500 respectively. The benefit shall be available notionally from 01.04.1987 and monetary from 01.04.1990.
By order of the Governor."
5. From the issuance of SRO 163 of 2005, it is abundantly clear that the respondents after having lost before CPSW No. 123/2013 Page 3 of 12 Supreme Court correctly appreciated the import of the judgment and treated the same as judgment in rem. Consequently, the relevant portion of the Schedule to SRO 75 of 1992 was amended. This is how the District and Sessions Judges got the relief across the board.
6. In the similar manner, the Superintending Engineers of Public Works and other Departments of the State, who were also complaining the same anomaly in their Pay Scale as it had existed in the cases of the District Judges, also approached this Court by way of SWP No. 1608 of 1992. While the aforesaid petition was subjudice, the writ petition filed by the District and Sessions Judges came to be decided on 17.04.1996. This Court finding that the grievance of the Superintending Engineers was also the same and identical to the one raised by the District Judges, allowed the writ petition of the Superintending Engineers vide its order dated 17.05.2001. The operative portion of the judgment reads thus:-
" Issue sought to be raised in this petition has since been decided by this Court in SWP No.529/1992 on
07.04.1996. In the aforementioned case petitioners, who were members of the judicial service sought benefit of SRO 75 of 1992. This was allowed. In the present case, same benefit is being sought by the petitioners who are holding the civil posts on the executive side. Precise argument which was sought to be raised by the State was taken note of in the aforementioned writ petition, the same was negative.
This petition shall stand allowed in the same terms."
(underlining by me).
CPSW No. 123/2013 Page 4 of 127. From a bare reading of the directions issued by this Court on 17.05.2001 reproduced above, it is crystal clear that the writ petition filed by the Superintending Engineers was also allowed in the same terms on which the writ petition filed by the District Judges, i.e., SWP No.529/1992 had been allowed on 07.04.1996. Reading this order in juxtaposition with the order passed on 07.04.1996 in SWP No.529/1992 would leave no manner of doubt that even in the case of Superintending Engineers, the relief was not restricted to the petitioners in the writ petition but was applicable to all the Superintending Engineers. In that view of the matter, there was absolutely no reason or occasion for anybody to treat the Superintending Engineers differently from the District Judges in the matter of implementation of order dated 17.05.2001 reproduced above. The respondents, who had reluctance to accept the judgment passed in the case of Superintending Engineers, had the remedies available to them in law. They challenged this order in Letters Patent Appeal before the Division Bench which was dismissed on 22.12.2011. SLP filed in the Supreme Court also met the same fate on 10.05.2012. Respondents even availed of the remedy of filing the Review Petition which too was dismissed by the Supreme Court on CPSW No. 123/2013 Page 5 of 12 30.08.2012. The judgment became final but there was no sincere effort by the respondents to comply with the same.
8. I have seen the memorandum prepared by the Finance Department for placement before the Cabinet for its approval so as to comply with the judgment passed by the Single Bench on 17.05.2001 and upheld upto the Supreme Court. As is apparent from the reading of the memorandum prepared by the Finance Department, the matter had been taken up with the Law Department for more than one occasion. The Law Department consistently held the view that judgment in the case of Superintending Engineers was also required to be implemented in the same manner in which it had been done in the case of the District Judges. The opinion of the Law Department appears to have been brushed aside not for cogent reasons but on the ground that compliance of the judgment in the case of Superintending Engineers would involve huge financial implications. Accordingly, a decision was taken to comply with the judgment in the case of the Superintending Engineers only with respect to the petitioners, who were before the Court and not in respect of the Superintending Engineers as a class in counter distinction to what had been done in the case of District Judges. By way of transgression, it may be noted that some of the Superintending Engineers, who were not CPSW No. 123/2013 Page 6 of 12 originally writ petitioners in SWP No. 1608/1992 had filed intervention application in the instant Contempt Petition claiming that the judgment rendered was a judgment in rem and the same was also required to be implemented qua them. The application for intervention was dismissed by Single Bench, but on an appeal the Division Bench of this Court allowed them to intervene. Before the Division Bench also the State tried to raise issue that judgment rendered in the case of Superintending Engineers was a judgment in personam and therefore, was required to be implemented qua the petitioners in the writ petition. This, however, was negated by the Division Bench. This matter too was taken to the Supreme Court but with no success, ultimately the judgment is claimed to have been complied with in the case of the interveners as well.
9. That from the pleadings as well as the rival contentions, it is apparent that the respondents claim to have implemented the judgment with respect to the Superintending Engineers, who were writ petitioners in the petition as also with respect to those, who were permitted to intervene by the Division Bench of this Court vide its judgment dated 28.05.2015 passed in LPAC No.03/2015. The respondents, thus, claim that the judgment passed by this Court has been complied with in CPSW No. 123/2013 Page 7 of 12 letter and spirit and nothing survives in these contempt proceedings.
10. Per contra, learned counsel appearing for the petitioners and the interveners submit that though the sanction by the competent authority has been granted for release of higher pay scale in their favour in compliance to the judgment dated 17.05.2001, yet the consequential benefits including the arrears of salary have not been worked out and paid to the petitioners nor their pension has been re-fixed. This is one aspect which respondents need to take note of. Once judgment qua the petitioners and the interveners is claimed to have been complied with and even requisite orders passed, I see no reason why the benefits of such orders have not been released in favour of the petitioners and the interveners so far. The respondents shall ensure that the benefits flowing from the orders passed by the competent authorities, in compliance to the judgment, passed in favour of the petitioners and the interveners are released without any further waste of time and in any case within four weeks from today.
11. So far as the grievance of the petitioners with regard to full and complete compliance of the judgment dated 17.05.2001 is concerned, it may be noted that despite this Court having cleared the issue more than once, earlier while deciding LPAC No.03/2015 on 28.05.2015 and CPSW No. 123/2013 Page 8 of 12 thereafter vide Order dated 05.02.2017 passed in this Contempt Petition, respondents are still contending that the judgment passed by this Court on 17.05.2001 is required to be implemented only in the case of the petitioners and at the most with respect to the interveners. It is strenuously urged that the judgment passed by this Court in the case of Superintending Engineers is a judgment in personam not a judgment in rem and therefore, would not enure to the benefit of other Superintending Engineers, who were not party in the writ petition and who have not approached this Court by way of any Contempt Petition. The arguments raised is preposterous and in itself contempt of the Court. The Law Department as well as the Finance Department had understood the judgment, when in their note prepared for placement before the Cabinet it was noted that the judgment of this Court in the case of Superintending Engineers was also required to be implemented in the same manner in which it had been implemented in the case of the District Judges and the benefits of judgment would go to the Superintending Engineers as a class. It is, however, intriguing to note that when ultimate order was passed, the benefit was restricted only to the writ petitioners. This was done by the respondents not on the ground that the judgment rendered in the case of CPSW No. 123/2013 Page 9 of 12 Superintending Engineers was not a judgment in rem but on the ground that grant of higher pay scale to the Superintending Engineers across the board would have huge financial implications. Needless to remind the respondents that financial implications or the paucity of funds cannot be put forth as an excuse to avoid implementation of the concluded judgment of this Court. The plea of learned counsel for the respondents that the Division Bench judgment of this Court dated 22.12.2011 passed in LPASWP No. 242/2003 had diluted the direction of the Court passed on 17.05.2001 and restricted the relief only to the petitioners is too misconceived to be accepted. The net result of dismissal of the Appeal by the Division Bench dated 22.12.2011 was upholding the judgment of the Single Bench dated 17.05.2001. The expression used in paragraph No. 10, i.e, "The order of learned Single Judge dated 17.05.2001 is confirmed" is of significance. The observation of the Division Bench contained in paragraph No. 11 expressing its anxiety to comply with the judgment without any further delay was keeping in view the advanced age of the petitioners before the Division Bench and cannot be said to have, in any manner, diluted the impact of the judgment of the Single Bench.
CPSW No. 123/2013 Page 10 of 1212. For the aforesaid reasons explained above, I am of the opinion that the judgment passed by this Court dated 17.05.2001 and affirmed by the Supreme Court is yet to be complied with by the respondents in letter and spirit. They are supposed to issue an SRO amending the Schedule of SRO 75 of 1992 dated 30.03.1992 in the same manner they issued SRO 163 of 2005 in the case of District Judges. Let me make it clear and emphatic that the Superintending Engineers and the District Judges are required to be treated at par and this is clear and categoric import of the judgment sought to be implemented in these proceedings. Simply, because the compliance of the concluded judgment of a Court involves huge financial implications, the respondents cannot avoid the compliance. The respondents, despite being well aware of the import of the judgment, as is apparent from the memorandum prepared by the Finance Department for submission to the Cabinet for complying with the judgment in the case of Superintending Engineers and subsequently the order passed by the Division Bench on 28.05.2015 and interlocutory order passed by this Court in these contempt proceedings on 05.10.2017, have strangely adopted an adamant attitude and have given impression to the Court that they are above law and are the final interpreters of the judgment passed by this Court.
CPSW No. 123/2013 Page 11 of 12The conduct exhibited by the respondents, on the face of it, is contemptuous and respondents are, therefore, prima- facie in Contempt. However, before I frame the Robkar and call upon the respondents to show cause as to why they be not punished, I deem it appropriate to afford them a last opportunity of four weeks to come up with full compliance of the judgment dated 17.05.2001 in letter and spirit and also ensure that not only orders on papers are passed but the benefits flowing from such orders passed in compliance to the judgment also reach the beneficiaries, i.e., all Superintending Engineers as have been held entitled to by the judgment sought to be complied with in these contempt proceedings.
13. Put up this petition on 29.09.2018.
Jammu (Sanjeev Kumar)
28.08.2018 Judge
(Madan-PS)
CPSW No. 123/2013 Page 12 of 12