M. J. Khabri vs Arun Kumar Mehta & Ors
2023 Latest Caselaw 1355 j&K/2

                                                              Serial No.12
                                                            Regular Causelist

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                             CCP(S) 315/2021

M. J. Khabri.
                                                            ..... Petitioner(s)

Through:    Mr. Mian Tufail, Advocate.
                            V/s

Arun Kumar Mehta & Ors.
                                                          .....Respondent(s)
Through:     Mr. Hakim Aman Ali, Dy. AG.

CORAM:
           HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.

                                  ORDER

20.10.2023

1. The instant contempt petition has been preferred by the petitioner, thereby seeking implementation of Order dated 28th May 2016 passed by this Court in writ petition being SWP No. 2566/2015, in terms whereof the writ petition was disposed of in the following manner:

"Respondent No. 1 and 2 are directed to consider and issue order of appointment by way of promotion on the post of Head Assistant in favour of the petitioner within two weeks. The petitioner shall be promoted to the post of Head Assistant from the date his juniors-private respondents have been promoted in terms of order dated 09.09.2013 and he shall be given all service benefits to which he will be entitled to in accordance with rules. It is further ordered that his case for in-situ promotion be also considered."

2. Pursuant thereto, detailed statement of facts has been filed by the respondents and along with statement of facts, two consideration orders have been placed on record, bearing Government Order No. 886-GAD of 2016 dated 9th August, 2016 and Government Order No. 937-JK (GAD) of 2021 dated 14th September, 2021. The respondents while filing the statement of facts have taken a specific stand that in the light of the recommendations of the Departmental Promotion Committee and in compliance to the direction passed by this Court on 28th May, 2016, in SWP No. 2566/2015, the case of the petitioner for promotion to the post of Head Assistant stood already considered in terms of Government Order No. 886-GAD of 2016 dated 9th August 2016 and the promotion for the period for which the petitioner had not worked as Head Assistant, has been ordered on notional basis strictly as per rules and in consonance with the doctrine of "No Work No Pay". However, in view of fresh contempt petition which has been filed by the petitioner for grant of monetary benefit as Head Assistant w.e.f. 9 th September 2013 instead of 9th August 2016, the respondents have taken a specific stand in the statement of facts that the claim of the petitioner has been re-examined and has been found devoid of any merit and accordingly vide Government Order No. 937-JK (GAD) of 2021 dated 14th September 2021, the claim of the petitioner has been rejected.

3. I have gone through the latest consideration order being Government Order No. 937-JK (GAD) of 2021 dated 14th September 2021, which has been placed on record as Annexure-II with the Statement of facts, filed by the respondents and a perusal whereof, reveals that while passing the aforesaid Order of consideration, the respondents have given due consideration to the order passed by this Court in CPSW No. 440/2017, whereby the Court has been pleased to observe as under:

"the respondents while granting promotion to the petitioner as against the post of Head Assistant, had to give him all the consequential benefits including the monetary ones w.e.f. 09.09.2013 as directed by this Court in a manner in which it was directed to be implemented by this Court. Therefore, before taking any coercive action in the matter, learned counsel for the respondents is directed to file the compliance report strictly in line with order of this Court within a period of three weeks, falling which appropriate orders shall follow on the next date of hearing."

4. Pursuant to the aforesaid direction, the General Administration Department filed a detailed compliance report and apprised this Court that the service benefits of the petitioner were directed to be given by this Court in accordance with the rules and since the petitioner had not actually worked on the post of Head Assistant retrospectively w.e.f. 9 th September 2013, the doctrine of "No Work No Pay" was invoked and for that period, he was given notional benefit accordingly.

5. In the light of the stand taken by the General Administration Department, this Court vide order dated 14 th September 2020, disposed of the earlier contempt petition (CPSW No. 440/2017) filed by the petitioner, in the following manner:

"that the incumbent respondents have changed their position either on account of retirement or transfer to some other office, as such, no useful purpose can be achieved by keeping the instant contempt petition pending, therefore the same is disposed of giving liberty to petitioner to approach the present incumbents with the copy of the order, subject matter of the contempt petition, for seeking implementation of the same, of course, in case same has remained unimplemented so far. Further, in the event, the petitioner, after availing the aforesaid liberty, is still dissatisfied as regards the implementation of the directions of this Court, he shall be at liberty to file appropriate proceedings for implementation of the same in accordance with law."

6. Pursuant thereto, the petitioner has filed the present contempt petition (CCP(S) 315/2021), seeking initiation of contempt proceedings against the respondents for not complying with the order of the Court.

7. The respondents in the light of the recommendations of the Departmental Promotion Committee and in compliance to the directions mentioned supra, have considered the case of the petitioner for promotion and accordingly, reiterated their stand, whereby they considered the case of the petitioner in terms of Government Order No. 886-GAD of 2016 dated 9th August 2016 and accorded promotion on notional basis for the period the petitioner had not worked as Head Assistant, which according to the respondents has been ordered strictly as per the rules and inconsonance with the doctrine of "Now Pay For No Pay".

8. Heard the learned counsel for the parties at length and perused the order of consideration dated 14th September 2021.

9. Since the basic direction dated 28th May 2016, which is sought to be complied with was specific to the extent of according consideration to the case of the petitioner for promotion on the post of Head Assistant from the date his juniors have been promoted in terms of order dated 9 th September 2013, besides directing the respondents to grant all service benefits, to which petitioner will be entitled to in accordance with the rules.

10. It has been brought to the notice of the Court by the learned counsel for the respondents that the direction insofar as granting of promotion to the petitioner to the post of Head Assistant is concerned, same has been accorded and that too retrospectively from the date the benefit has been extended to his junior counter parts in terms of Order dated 9 th September 2013 and insofar as the direction to grant him service benefits are concerned, same has been granted to him notionally, as has been reflected in the latest order of consideration dated 14th September 2021, in the light of the fact that the petitioner has not worked for the intervening period w.e.f. 9th September 2013 till 9th August 2016 and applying the doctrine of "No Work No Pay", the case of the petitioner for grant of monetary benefit as Head Assistant retrospectively w.e.f. 9th September 2013 instead of 9th August, 2016, after having been examined, has found devoid of any merit and stood rejected.

11. The learned counsel appearing on behalf of the petitioner vehemently argued that the respondents have not accorded fresh consideration to the case of the petitioner by virtue of Order of consideration dated 14th September 2021, which is nothing but reiteration of the earlier order, which has been passed in 2016, which has already been rejected by this Court. He further submits that insofar as direction to the extent of in-situ promotion is concerned, same has not been complied with.

12. Since the direction was specific only to the extent of granting service benefits in favour of the petitioner in accordance with the rules and accordingly, this Court is of the view that order/judgment passed by this Court, has been complied with in its letter and spirit and nothing remains to be adjudicated any further in the instant contempt petition.

13. In the aforesaid background, the proceedings in the instant contempt are dropped and the contempt petition shall stand closed and rule, if any, shall stand discharged, however, petitioner, shall be at liberty to challenge the order of consideration issued vide Government Order No. 937- JK(GAD) of 2021 dated 14th September 2021, in case if he is so advised.

14. Contempt Petition shall stand closed accordingly.

(Wasim Sadiq Nargal) Judge SRINAGAR:

20.10.2023 "Hamid"