Ghulam Mohd. Lone vs Mr Manoj Kumar Dwivedi & Ors
2021 Latest Caselaw 660 j&K/2

                                                                     Serial No. 104
                                                                   Before Notice List

              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR

                             {Through Virtual Mode}


                                                         CCP(S) No. 388/2020
Ghulam Mohd. Lone
                                                               ... Petitioner(s)
                               Through: -
                    Mr Rizwan-u-Zaman Bhat, Advocate.

                                      V/s
Mr Manoj Kumar Dwivedi & Ors.
                                                            ... Respondent(s)

Through: -

Mr M. A. Chashoo, AAG.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER) 29.06.2021 The father of the Petitioner, who was working as a Road

Supervisor in the Respondent Department, died in harness on 3rd of

November, 1999. The Petitioner filed application on 2nd of February, 2000 for

seeking appointment on compassionate grounds in terms of the mandate of

SRO 43 of 1994. On 21st of February, 2000, this application of the Petitioner

was processed by the Executive Engineer, R&B Division, Kulgam.

Thereafter, the Respondents, instead of taking a formal decision with regard

to the application of the Petitioner on compassionate grounds, referred the

matter to various authorities, thereby delayed the consideration of the case of

the Petitioner. Faced with this situation, the petitioner was left with no other

option but to approach this Court through the medium of Writ Petition bearing

SWP No. 823/2013 seeking a direction in the name of the Respondents to appoint him in terms of SRO 43 of 1994 pursuant to death of his father in

harness.

The Writ Court, on consideration of the matter and after hearing

the counsel for the parties, in terms of judgment dated 10th of February, 2016,

arrived at the conclusion that the delay, which was mainly attributed to the

conduct of the authorities, could not have become the reason for denying the

claim of the Petitioner for being appointed on compassionate grounds.

Accordingly, the Writ Court, while disposing of the Petition, directed the

Respondents to consider and offer appointment to the Petitioner on

compassionate grounds in accordance with the mandate contained in Rules

notified vide SRO 43 of 1994.

It is stated that the Petitioner, upon receipt of the aforesaid

judgment passed by this Court, immediately served a copy thereof to the

Respondents in the year 2016, but, the Respondents, instead of complying

with the judgment aforesaid, unnecessarily joined issue relating to relaxation

in upper age limit of the Petitioner, which ground was not, at all, taken by

them in the Objections filed before the Writ Court. Aggrieved thereby, the

Petitioner filed Contempt Petition bearing CPSW No. 486/2016, wherein the

Respondents filed part Compliance and, at Paragraph No.6 therein, it was

stated that the case of the Petitioner was processed for implementation of the

judgment passed by the Court, but the same requires relaxation in upper age

limit because the Petitioner, as per details, was 40 years, 09 months and 16

days old as on 1st of January, 2018 as per his Date of Birth recorded as 15th of March, 1969. The said Contempt Petition, thereafter, vide order dated 28th of

September, 2020, was disposed of with the observation that since the

incumbents/ respondents had changed their position on account of their

retirement/ transfer, no useful purpose would be served in case the Contempt

Petition is kept pending before the Court. The Contempt petition was,

accordingly, disposed of giving liberty to the Petitioner to approach the new

incumbents with the copy of the judgment passed by the Writ Court for

seeking implementation of the same. Besides, it was also provided that in the

event the judgment is not implemented by the new incumbents as well, the

Petitioner shall be at liberty to approach this Court again in appropriate

proceedings. It is in these circumstances that the Petitioner has filed the instant

Contempt Petition alleging disobedience/ non-compliance of the judgment

passed by the Writ Court on part of the new incumbents/ Respondents.

On notice, the Respondents, through Additional Secretary to

Government, PW(R&B) Department, have filed Compliance Report, perusal

whereof reveals that the General Administration Department has returned the

case of the Petitioner with the advice to the PW(R&B) Department to examine

the case in terms of SRO 120 of 2018 dated 5th of March, 2018. It is further

submitted that on examination of the case of the Petitioner in terms of SRO

120 of 2018 (supra), it was found that the same is not covered under the said

SRO as the Petitioner does not qualify the eligibility criteria for the same,

resulting in issuance of Government Order No. 67-PW(R&B) of 2021 dated

10th of February, 2021 whereby the case of the Petitioner stands rejected.

Having heard the learned counsel for the parties, gone through

the pleadings on record and after considering the matter, the Court is of the

opinion that the Respondents, instead of complying with the terms of the

judgment passed by the Writ Court, while issuing the rejection Order dated

10th of February, 2021, have sit in appeal against the said judgment which, in

no circumstances, is within the power and authority of the Respondents. The

judgment passed by the Writ Court is a declaration made in favour of the

Petitioner declaring him eligible for appointment on compassionate grounds

on application of SRO 43 of 1994. The Respondents, by no stretch of

imagination, have the authority/ power to reverse the judgment passed by this

Court or sit in appeal against the same by applying some other SRO to the

case of the Petitioner which is not the mandate of the judgment of the Writ

Court.

Given the above position, the action and conduct on the part of

the Respondents, as aforesaid, has, prima facie, made them liable to be

punished for committing contempt of Court. Besides, the Respondents have

to remain present in person before the Court on each and every date of hearing

till the Contempt Petition is taken to its logical conclusion. However, before

proceeding on these lines, it is though just and proper to grant one last and

final opportunity to the Respondents for submitting compliance of the

judgment passed by the Writ Court. Accordingly, four weeks' time, as last

chance, is granted to the Respondents for filing Compliance, failing which

they shall appear in person before the Court on the next date of hearing.

List on 30th of July, 2021 in the 'Daily Supplementary Cause

List'.

Registry to forthwith send a copy of this Order to Mr Chashoo,

learned Additional Advocate General.

(Ali Mohammad Magrey) Judge SRINAGAR June 29th, 2021 "TAHIR"

TAHIR MANZOOR BHAT 2021.06.29 15:50 I attest to the accuracy and integrity of this document