Jammu & Kashmir High Court - Srinagar Bench
State Of Jk And Others vs Khazir Mohammad Dar on 10 December, 2021
S. no. 10
Regular list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA no. 162/2019
CM no. 4253/2019
Caveat no. 1335/2019
State of JK and others
.... Appellant(s)
Through: Mr B. A. Dar, Sr. AAG
V/s
Khazir Mohammad Dar
... Respondent(s)
Through: Mr M. A. Qayoom, Advocate
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd Akram Chowdhary, Judge
ORDER
10.12.2021
Magrey, J (Oral)
01/- This Letters Patent Appeal, for short appeal, is directed against the order
passed by the learned Single Judge in a contempt petition, CPSW no. 438/2013, on
06.12.2018, for short impugned order, in case titled Khazir Mohammad Dar v.
Mohammad Afzal Bhat and others, seeking setting aside of the same.
BRIEF FACTS
02/- Briefly stated, the respondent/ writ petitioner, had been temporarily
appointed on contractual basis as Prosecuting Forest Ranger in the Forest
Department for a period of one year in terms of Order No. 226/cc of 1968-69 dated
15.02.1969 and after putting in four years of service as such, his services came to
be regularized vide order dated 15.03.1973. Thereafter, the respondent/ petitioner
resigned from the job pursuant to his selection and appointment as Naib Tehsildar
in the Revenue Department through direct recruitment vide Government Order No.
Rev (A) 464 of 1973 dated 08.10.73. Subsequent thereto, the respondent/ petitioner
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filed a writ petition, SWP no. 1148/1999 before the writ court seeking direction
upon the respondents to consider counting his service rendered in forest
department towards his current service in the revenue department. The respondents
considered and rejected the case of the petitioner in terms of Order no. 179 of 2001
dated 21.09.2001. Feeling aggrieved, the petitioner/ respondent filed yet another
writ petition, SWP no. 1202 of 2002 and the Writ Court in terms of order dated
14.03.2012 directed the respondents to count the services rendered by the
petitioner in the forest department on regular basis towards his service in revenue
department and fix the seniority also pay him all consequential benefits as shall be
permissible under rules.
03/- With a view to seek implementation of the order supra, the petitioner/
respondent herein filed a contempt petition, CPSW no. 438/2013 before the
contempt court. The respondents/ appellants filed the statement of facts/
compliance report pleading therein that in terms of Government Order No. 345 of
2017 dated 22.11.2017, sanction has been accorded to the counting of the services
of the respondent, as rendered by him in the Forest Department on regular basis
w.e.f. 05.02.1969 to 23.10.1973 towards his service in the Revenue Department
and subsequently in terms of Government Order No. 138-Rev (NG) 2018 dated
27.07.2018, sanction has also been accorded to the grant of consequential benefits
viz Pay fixation/ pensionary benefits, accruing due as per rules on account of
counting of services of the petitioner rendered by him in the Forest Department
towards his service in the Revenue Department. The appellants/ respondents had
pleaded that since re-fixation of seniority in a new service on the basis of the
service rendered by the respondent in the previous department and placing him
before his counterparts who joined the department earlier to him is not covered
under any provisions of service law, therefore, being impermissible under rules
was rejected.
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04/- The Contempt Court in terms of order dated 06.12.2018, after considering
the statement of facts/ compliance report, directed as follows:
"As seen above, the Government order No. 138 Rev (NG)
2018 dated 27.07.2018 is clearly suggestive of the fact that the
respondents have not given the benefit of seniority to the
petitioner from the date from which he is to be treated to be on
the cadre of the Revenue Service while computing his earlier
service in the Forest Department. This is clearly antithesis of
the judgment dated 14.03.2012 passed in SWP no. 1202/2002.
The stand taken by the respondents that seniority cannot be
fixed from the time when the petitioner had not borne on the
cadre of Revenue Service, cannot be accepted and needs to be
turned down. Once the petitioner is held to be a member of the
Revenue Service from the date when he entered into the Forest
Service, he has to be treated with all the consequential
benefits of being in the service including seniority, promotion,
on induction in the Administrative Service in which his
counterparts, who are similarly situated, have been taken.
Respondents, as such, are directed and impressed upon to
implement the judgment dated 14.03.2012 passed in SWP no.
1202/2002 in letter and spirit. Any further attempt to thwart
the implementation of the judgment will be at the peril of the
respondents, as also conveyed earlier. The exercise regarding
implementation be concluded thus, expeditiously as far as
practicable, preferably within a period of ten weeks from
today."
05/- The Appellants are aggrieved of this very order and are challenging the same
by the medium of present appeal inter alia on the ground that the Contempt Court
the impugned order amounts to passing further directions to the order dated
14.03.2012 of which the implementation was being sought.
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06/- The present appeal is precisely filed to challenge the directions contained in
the impugned order which are believed to be amounting to further directions,
therefore, making the appeal competent.
07/- The learned counsel for the respondent/ petitioner raised an objection as
regards the maintainability of the writ petition. His contention is that the remedy of
filing an appeal to the order passed by the Contempt Court is not available,
therefore, the present appeal is not maintainable.
08/- We have heard learned counsel for the parties and considered the
submissions made.
09/- The moot question for consideration in this appeal is as to whether the
directions passed by the Contempt Court in terms of the impugned order amount to
further directions of the Writ Court passed in terms of Order dated 14.03.2012 of
which the implementation was sought by the petitioner/ respondent herein through
a contempt petition?
10/- We do not intend to refer to the detailed factual aspect of the matter as taken
note of in the order dated 14.03.2012 by the Writ Court as the same has been
briefly referred to hereinabove, however, since the directions passed by the Writ
Court which was subject of the contempt petition whereby the Writ petition had
been disposed of by directing the respondents/ appellants to count the services of
the petitioner as rendered in the forest department on regular basis towards his
services in the Revenue Department and to fix the seniority and to pay him all the
consequential benefits as shall be permissible, is reproduced in verbatim herein,
thus:
"Viewed thus, this writ petition succeeds. Respondents are
directed to count services of the petitioner as rendered in the
Forest Department on regular basis towards his service in the
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Revenue Department and to fix the seniority and to pay him all
the consequential benefits as shall be permissible."
11/- In the considered view of this Court, the petitioner was found entitled, by
declaration of the Writ Court, to the counting of services rendered in the Forest
Department on regular basis towards his service in the Revenue Department with
further direction of fixation of seniority and pay him other consequential benefits.
Needless to mention that the appellants/ respondents had, during the pendency of
the contempt petition, filed many compliance reports as the contempt court was not
convinced of such compliances and lastly on 27.07.2018, the appellants filed the
compliance enclosing therewith the Government Order No. 138 Rev (NG) 2018
dated 27.07.2018, and took a stand therein that the respondent/ petitioner has been
given all the benefits to which he was entitled to in terms of the final order dated
14.03.2012 by the Writ Court. The operative portion of the Government order,
being relevant, is taken note of herein:
"Now therefore, in order to comply, in entirety, with the order
dated 01.06.2018 (para 13) of the Hon'ble Court, sanction is
hereby accorded to the grant of consequential benefits viz pay
fixation/ pensionary benefits, accruing as per rules on account
of counting of services of the petitioner (Khazir Mohammad
Dar) rendered by him in the Forest Department, w.e.f.
05.02.1969 to 23.10.1973, towards his service in the Revenue
Department. Since the petitioner has already retired from
service, a copy of this order is forwarded to the Accountant
General, J&K, Srinagar for further necessary action."
12/- We have examined the records, gone through the Government Order
alongside the compliance report filed in compliance to the Order dated 14.03.2012.
We have also perused the paragraph no. 14 of the impugned order and we are of
the considered view that the Contempt Court has passed the directions which were
not contained in the Writ Court Order dated 14.03.2012 of which the compliance
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was being sought and thus the same amount to passing the further directions. The
Contempt Court has completely ignored the compliances filed and passed further
directions.
13/- We have gone through the compliance order and are satisfied that there was
no occasion for the Contempt Court to proceed further in the matter by issuing the
directions when the respondents had already submitted the compliance in tune with
the directions of the Writ Court.
14/- It is settled law that if the Contempt Court, while dealing with a contempt
petition, issues further directions, the aggrieved can challenge the same in the
appeal which is maintainable and the Bar under Section 19 for further appeal does
not come in the way of the appellants. The Hon'ble Apex Court in case titled
Commissioner/Secretary to Govt. Education Department, J&K and others etc. v.
Mohd Amin Waza & Anr. Etc., bearing SLP (Civil) Diary No(s). 19290/2019,
decided on 26.07.2021, has observed as under:
"In the contempt proceedings, the High Court cannot improve
upon the direction or give additional direction to the
Department beyond the
original direction(s) contained in the order dated
24.05.2011."
15/- In this view of the matter, the objection taken by Mr M. A. Qayoom, learned
counsel for the respondent, regarding maintainability of the appeal has no
substance, therefore, is turned down. The principle of the law laid down by the
Apex Court and referred to by the learned counsel for the respondent/ petitioner, is
not disputed but its application certainly depends on the facts and circumstances of
the case and in the facts and circumstances of the present case, the application of
the law referred to by the learned counsel for the respondent/ petitioner is not
available.
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16/- Viewed thus, the appeal is allowed and the order dated 06.12.2018 passed by
the Contempt Court in CPSW no. 438/2013 is set-aside. However, the aggrieved
would be at liberty to challenge the Government Order No. 138 Rev (NG) 2018
dated 27.07.2018, if he so chooses.
17/- The appeal as also the Contempt petition no. 438/2013 shall stand disposed
of on the above lines.
(Mohd Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
Srinagar
10.12.2021
Amjad lone, Secretary
Whether the order is speaking: Yes
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