Jammu & Kashmir High Court
Union Territory Of J&K vs Farooq Ahmed Sheikh And Others on 3 September, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 26.08.2021
Pronounced on : 03.09.2021
LPA No.320/2019
CM Nos.9598/2019 & 2956/2021
Union Territory of J&K ...Appellant(s)
Through:- Mr. Ayjaz Lone, Dy. AG
V/s
Farooq Ahmed Sheikh and others ...Respondent(s)
Through:- Mr. M.P.Sharma, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. This intra court appeal is directed against orders dated 25 th
September, 2019 and 25th November, 2019 passed by the learned
Single Judge in CPSW No.413/2013 titled Farooq Ahmed Sheikh
and others. v. Mohd. Afzal Bhat and others.
2. Before we consider the rival contentions, a brief reference to
factual antecedents leading to the filing of this appeal would be
necessary.
The writ petition filed by the respondents registered as SWP
No.1373/2012 came to be decided by the learned Single Judge vide
its judgment dated 17th May, 2013, whereby a direction was issued
to the Principal Chief Conservator of Forests (respondent No.2 in
the writ petition) to forward the case of respondent Nos. 1 and 4,
complete in all respects, to the administrative department (forest
department) within a period of two weeks with further direction to
the administrative department to consider the case of the said
respondents for regularization of their services and pass
appropriate orders within a further period of one month. Similarly,
Principal Secretary to Govt., Department of Forest (respondent
No.1 in the writ petition) was directed to consider the cases of
respondent Nos. 2 and 3 for regularization of their services in terms
of SRO 64 of 1994, as per the recommendations of appellant No.2
within a period of three months. The Writ Court further directed
that the official respondents shall allow the writ petitioners
(respondents herein) to continue in services and pay them unpaid
wages for the period they had worked and also continue to pay
them future wages till decision with regard to their regularization
was taken by appellant No.1 (respondent No.1 in the writ petition).
When this judgment was not complied with by the appellants
herein, respondents filed a contempt petition i.e. CPSW
No.413/2013 arraying the incumbents holding the positions of
Commissioner/Secretary to Govt., Forest Department and Principal
Chief Conservator of Forests. Later on Mr. Navin Choudhary,
Commissioner/Secretary to Govt., Finance Department was also
arrayed as respondent. On being put on notice, compliance report
on behalf of Commissioner/Secretary to Govt., Forest Department
was filed before the learned Single Judge. Along with the
compliance report, a detailed speaking order passed by the Chief
Conservator of Forests, Jammu was also placed on record. It was
contended on behalf of the forest department that the judgment
insofar as official of forest department are concerned, stood
complied with. The compliance report submitted by the
Commissioner/Secretary, Forest Department came up for
consideration before the learned Single Judge, who vide its order
dated 25th September, 2019 rejected the compliance report and
found the order of rejection dated 07.04.2017 not in consonance or
in compliance with the judgment dated 17 th May, 2013. The
learned Single Judge, thus, directed the appellants to consider the
case of the respondents for regularization and pass appropriate
orders and for that purpose granted eight weeks time. This was
done by the learned Single Judge vide order impugned dated 25 th
September, 2019.
On 25th November, 2019, when the matter came up before
the learned Single Judge, Mr. Ayjaz Lone, appearing for the
appellants sought further three weeks' time to comply with order
dated 25th September, 2019. Learned Single Judge while granting
time to the appellants to file compliance report also provided that
in case the compliance was not filed on or before the next date,
Commissioner/Secretary to Govt., Forest Department shall have to
explain each and every day's delay in filing compliance
commencing from 25th September, 2019. The appellants are
aggrieved of both the orders passed by the learned Single Judge on
25.09.2019 and 25.11.2019 and are before us by way of instant
appeal.
3. Mr. M.P.Sharma, learned counsel appearing for the respondents,
raised a preliminary objection with regard to the maintainability of
this appeal. He would submit that the orders impugned are the
orders of moment passed by the learned Single Judge during the
course of hearing the contempt petition and, therefore, not
"judgment" within the meaning of Clause 12 of the Letters Patent.
He would further submit that under the Contempt of Courts Act,
appeal would lie only if the impugned order is passed in the
exercise of contempt jurisdiction for punishing the contemnor.
4. Per contra, Mr. Aijaz Lone, learned counsel appearing for the
appellants, would submit that the orders impugned, particularly,
order dated 25.09.2019 is an order passed by the learned Single
Judge in amplification and modification of the original order dated
17.05.2013 of which the respondents have alleged non-compliance
and, therefore, would fall within the meaning of "judgment" as
contained in Clause 12 of the Letters Patent.
5) Having heard learned counsel for the parties and perused the
record, we are of the view that the order impugned dated
25.09.2019, whereby the learned Single Judge has rejected the
consideration order dated 07.04.2017 passed by the appellants and
has returned a finding that the respondents, who had been working
with the appellant-department continuously for the last several
years cannot be said to be casual workmen, is tantamount to
modifying/amplifying the original judgment dated 17.05.2013.
6. The issue as to whether the respondents are daily wagers or casual
workers was not subject matter of adjudication in the writ petition
nor was there any decision rendered on the point by the writ court.
The Writ Court while disposing of the writ petition vide its
judgment dated 17th May, 2013 only called upon the respondents to
consider the cases of the respondents under SRO 64 of 1994.
7. It is true that while filing compliance and placing on record the
speaking order, the appellants informed the Court that the case of
three of the respondents had not been accepted by the empowered
committee headed by the Principal Secretary to Govt., Finance
Department on the ground that the respondents were casual
workers and, therefore, not covered by SRO 64 of 1994 as also that
in view of the law laid down by Hon'ble the Supreme Court in the
case of State of Karnataka v. Uma Devi, (2006) 4 SCC 1, the
respondents were not entitled to regularization.
8. The compliance submitted by the appellants is clear and categoric
enough to demonstrate that whatever was within the domain of the
appellants i.e. department of forest had been done by the
appellants. The regularization of the respondents could not be done
because the empowered committee headed by Principal Secretary
to Govt., Finance Department did not accede to the request of
forest department for regularization in light of some opinion
tendered by the law department.
9. In view of the aforesaid compliance, submitted by the appellants,
there was no justification to proceed against the appellants nor
could learned Single Judge have entered into the merits of the
decision taken by the finance department.
10. In view of the above, we hold the appeal maintainable and,
accordingly, set aside order dated 25.09.2019 and consequential
order dated 25.11.2019, impugned in this appeal. We, however,
leave it for the learned Single Judge to proceed against the other
respondents like Principal Secretary to Govt., Finance Department,
if it is of the view that the judgment of the Writ Court dated
17.05.2013 has not been fully complied with.
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
JAMMU
03.09.2021
Vinod,PS
Whether the order is speaking : Yes/No
Whether the order is reportable: Yes/No
