Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K And Others vs Sumeera Jan And Others on 19 February, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
CM No. 1207/2020
In LPA No. 42/2020
c/w LPA No.48/2020
LPA No.49/2020
CM No. 1473/2020
Reserved on: 12.02.2021
Pronounced on: 18 .02.2021
Union Territory of J&K and others ...Appellant(s)
Through: Mr. Shah Amir, AAG
V/s
Sumeera Jan and others ...Respondent(s)
Through:Mr. Jahangir Iqbal Ganai, Sr.
Advocate with Ms.Humaria Shafi, Advocate.
CORAM:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Tashi J:
CM No. 1207/2020.
1. An Appeal under Clause 12 of the Letters Patent, by Union Territory
of J&K, seeking to challenge the Order of the Writ Court dated 30th
October 2019, passed in WP(C) No. 3158/2019, has delay of 52 days.
2. Learned counsel for the respondents very fairly states that he has no
objection in allowing the Condontion of Delay Application provided
the matter is heard on merits at an earliest.
3. The application for the reasons, assigned therein is, allowed and the
delay of 52 days in filing the LPA is condoned. CM disposed of.
LPA No.42/2020; 48/2020; 49/2020
4. Impugned in this Appeal is Order dated 30th October 2019, passed in
WP(C) No.3158/2019 & CM No.6317/2019, whereby Director Health
Services, Kashmir, Srinagar (appellant no.5 herein) has been directed to
CM No. 1207/2020
In LPA No. 42/2020
c/w LPA No.48/2020
LPA No.49/2020
issue formal appointment orders in favour of writ petitioners -
respondents herein, on the grounds tailored therein.
5. With a view to appreciate the grounds of challenge, urged by
appellants in Appeal on hand to assail impugned order, passed by the
learned writ Court, it is necessary to briefly notice few relevant facts
of the case.
6. J&K Services Selection Board ("Board" for short), vide
Advertisement Notice No.06 of 2015 dated 17.08.2015, advertised 45
posts of Junior Physiotherapists. Writ petitioners-respondents herein,
being eligible, applied and participated in selection process. On
completion of selection process, the Board, vide communication
No.SSB/Secy/Sel/2017/13175-81 dated 14th December 2017,
conveyed recommendation of selected candidates/writ petitioners to
Principal Secretary to Government, Health and Medical Education
Department. On receipt thereof, the Government, vide communication
No.HD/NG/297/2017 dated 16th January 2018, conveyed the approval
to Director Health Services, Kashmir, Srinagar, to issue formal
appointment orders in favour of selected candidates against post of
Junior Physiotherapist in District Cadre Anantnag, Bandipora,
Baramulla, Budgam, Kulgam, Kupwara, Shopian, Ganderbal.
7. It appears that the Government in terms of communication
No.HD/NG/297/2017 dated 14.02.2018, kept issuance of formal
appointment orders in favour of petitioners in abeyance. While the
matter was pending consideration of the Government, writ petitioners
- respondents, dissatisfied with aforesaid communication, preferred a
writ petition, being WP(C) no.3158/2019, in which learned Writ Court
passed Order dated 30th October, 2019.
8. Aggrieved by the Writ Court order dated 30th October, 2019,
appellants have come up with instant Appeal, challenging it on
various grounds, including that the relief granted by the Writ Court
tantamount to granting principal relief. It is urged that impugned order
is not an interlocutory order but a final order, which is not permissible
CM No. 1207/2020
In LPA No. 42/2020
c/w LPA No.48/2020
LPA No.49/2020
even under the settled position of law and, therefore, impugned order
is liable to be set-aside. It is also contended that learned Writ Court
before passing impugned order could have issued notice to the
appellants and provided them an opportunity to project their stand by
filing the Reply/Objections. It is further contended that by way of
interim order, final relief cannot be granted.
9. Having heard learned counsel for the parties and perused the record,
we are of the view that the Order of the learned Writ Court, impugned
in this Appeal, does not meet the ends of justice.
10.It is well settled law that by virtue of interim order, final relief cannot
be granted. This Court has,at a number of occasions, observed that the
final relief sought for should not be granted at an interim stage. A
similar view has been taken by this Court while rendering a judgment
dated 05.09.2016 in LPASW No. 115/2016, titled Satish Kumar
Razdan v. State of J&K and another, after making reliance upon the
law laid down by the Apex Court in State of U.P. v. Ram Sukhi Devi
(2005) 9 SCC 733, Nedungadi Bank Ltd v. Ashmita D. Mehta and
others, (2007) 5 SCC 738, and Shiv Shanker v. Board of Directors,
U.P.S. R. T. C, 1995 Supp (2) SCC 726. The Supreme Court held that
final relief sought for should not be granted at an interim stage. The
Supreme Court also said that it had deprecated the practice of granting
interim orders which practically give the principal relief sought in the
petition for no better reason than that of a prima facie case had been
made out, without being concerned about the balance of convenience
and host of other considerations.
11.We have gone through writ petition (Annexure II to the Appeal). Relief
solicited therein is worth to be reproduced hereunder:
a. By issuance of an appropriate writ order or direction in the nature of
Certiorari, the impugned communication bearing No.HD/NG/ 297/
2017 dated 14.02.2018, be quashed.
b. By issuance of an appropriate writ, order or direction in the nature of
Mandamus, the respondents be directed to issue formal appointment
order in favour of the petitioners as against the post of Junior
Physiotherapist.
CM No. 1207/2020
In LPA No. 42/2020
c/w LPA No.48/2020
LPA No.49/2020
12. We have also noticed the page 69 & 70 of paper book (i.e. ad interim
application) which shows that respondents-writ petitioners seek the
grant of interim relief by directing maintaining of status quo with
respect to the position of writ petitioners-respondents.
13.In the above backdrop, we, without venturing into the merits of the
case, deem it proper to allow the Appeal and set-aside the Order dated
30th October 2019, passed in WP(C) No. 3158/2019, with a request to
the learned Writ Court to decide the writ petition(s)/CM(s)
expeditiously after hearing the parties and pass the orders as may be
warranted in the facts and circumstances of the case. Ordered
accordingly.
As a corollary thereof, contempt proceedings, if any, initiated
on the edifice of above interim order dated 30 th October 2019, are
dropped and contempt petition(s) closed.
Appellants - writ-respondents shall file their Reply/Objections
within ten days from today before the learned Writ Court in
opposition to writ petition(s).
14.Disposed of.
( Sanjay Dhar) (Tashi Rabstan)
Judge Judge
Srinagar
18.02.2021
"Ab. Rashid"
Whether the order is reportable:Yes/No.
ABDUL RASHID GANAI
2021.02.19 02:24
I attest to the accuracy and
integrity of this document
