Jammu & Kashmir High Court
Bhopinder Kumar vs Umreena Akhtar on 13 October, 2023
Sr. No. 16
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 145/2023
CM No. 5232/2023
CM No. 5233/2023
1. Bhopinder Kumar, Commissioner/Secretary, .....Applicant(s)/Appellant(s)
Health & Medical Education Department,
J & K Govt., Civil Secretariat,
Jammu/Srinagar
2. Rajeev K Sharma, Director Health Services,
J & K Govt. Jammu
Through :- Mr. Raman Sharma, AAG
v/s
Umreena Akhtar W/O Afzal Ahmed .....Respondent(s)
R/O Village VPO Gool, District Ramban
Through :- Mr. M Y Akhoon, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
13.10.2023
(ORAL)
(Sanjeev Kumar J)
CM 5232/2023
1. Through the medium of this application, applicants seek
condonation of delay of 12 days in filing the appeal.
2. For the reasons stated in the application, coupled with the
submissions made at the Bar, the instant application is allowed and
the delay of 12 days in filing the appeal is condoned.
3. Application disposed of.
LPA 145/2023
1. This appeal has been filed against the order dated 16.06.2023,
passed by the learned Single Bench of this Court (for short, "the
Writ Court") in CPSW No. 770/2018 titled "Umreena Akhtar vs.
Atul Dulloo & Anr.", whereby the Writ Court has framed Rule
against the Secretary to Govt., Health & Medical Education
Department, Govt. of UT of J & K/Appellant No. 1 herein, with
further direction to him to appear in person.
2. Before we come to the grounds of challenge, urged by the
appellants, we deem it appropriate to take note of brief resume of
factual antecedents leading up to the filing of this appeal.
3. Respondent-Umreena Akhtar, whose name figured in the waiting
list under RBA category for the post of Female Multi Purpose
Health Worker (FMPHW), District Cadre, Ramban was denied
appointment by the Appellant- the then Commissioner Secretary to
the Government, Department of Health & Medical Education, on
the ground that the wait list had outlived its life on the expiry of
period of one year from the date of issuance of original select list.
4. Respondent agitated the matter before the Writ Court in SWP
282/2016 and called in question the communication dated
16.10.2015 of Department of Health & Medical Education,
whereby the respondent herein had been intimated that the wait list
in which her name figured at S.No.1 had expired by efflux of time
and therefore, could not be operated. The impugned communication
was contested by the concerned department, relying upon Rule 14
(7) of SRO-375 dated 21.10.2010. The matter was considered by
the Writ Court vide judgment dated 17.05.2018, whereby the Writ
Court came to a conclusion that the petition filed by the respondent
herein had merit and therefore, deserved to be allowed. The
impugned communication dated 16.10.2015 was set aside and the
respondents in the writ petition were directed to consider the case of
the respondent herein for appointment against the vacancy, which
had remained unfilled, keeping in view the fact that her name
figured at S.No.1 in the wait list under RBA category.
5. An appeal i.e. LPA No. 28/2020, filed by Govt. of UT of Jammu &
Kashmir against the judgment of Writ Court dated 17.05.2018 came
to be dismissed on 18.02.2022. When the Writ Court judgment
dated 17.05.2018 was not complied with, a contempt petition was
filed by the respondent herein before a learned Single Judge, in
which the concerned department filed a compliance report and
placed on record a consideration order i.e. Govt. Order No. 198-JK
(HME) of 2023 dated 08.03.2023.
6. As is apparent from the impugned order, the consideration order
was rejected by the Single Bench and respondents in the contempt
petition were directed to file a fresh status/compliance report.
Accordingly, Dr. Rajeev K Sharma-Director Health Services,
Jammu filed a compliance report dated 29.05.2023, in which it was
reiterated that the Government Order dated 08.03.2023, which has
already been placed on record is complete compliance of the
directions passed by the Writ Court and therefore, no further
compliance was required. The matter then came up for
consideration before the court on 16.06.2023, when the learned
Single Judge having regard to the contumacious conduct exhibited
by the respondents in showing complete defiance to the directions
passed by the Writ Court prima facie found that the appellants
herein had committed contempt of court. Accordingly, Rule was
directed to be framed against the Appellant No. 1 with further
direction for his personal appearance in the court on the next date of
hearing. It is this order dated 16.06.2023, which is called in
question before us.
7. The impugned order dated 16.06.2023 is challenged by the
appellants, primarily, on the ground that there was no occasion for
the learned Single Judge to frame the Rule and the personal
appearance of Appellant No. 1, when the judgment passed by the
Writ Court stood complied with and consideration order was issued
in that regard.
8. Learned counsel for the appellants submits that the learned Single
Judge in exercise of contempt jurisdiction could not have gone
beyond the directions passed by the Writ Court and directed the
appellants to comply with the judgment in a particular manner, not
envisaged in the original judgment.
9. Learned counsel for the respondent raises preliminary objection to
the maintainability of this contempt petition. He submits that in
terms of Section 19 of the Contempt of Courts Act, the appeal is
maintainable only against an order of punishment passed by the
court in the exercise of jurisdiction to punish for contempt of Court.
Framing of Rule and making a prima facie view, with regard to the
commission of contempt cannot be said to be an order passed in
exercise of jurisdiction for the punishment of contempt.
10. Having heard learned counsel for the parties and perused the
material available on record, we are of the considered opinion that
this appeal against the order dated 16.06.2023 passed by the learned
Single Judge is not maintainable. Indisputably, the contempt
petition is still pending and the learned Single Judge has not passed
any order in the exercise of its jurisdiction to punish the appellants
herein for committing contempt of Court.
11. In terms of order impugned, the learned Single Judge has only
framed a prima facie opinion about the commission of contempt
and has put Appellant No. 1 on notice to explain as to why he
should not be punished for committing the contempt of the court.
Such order, on the face of it, is not appealable under Section 19 of
the Contempt of Courts Act. Even the Letters Patent Appeal (LPA)
under clause 12 of the Letters Patent is not maintainable, as the
impugned order cannot, by any stretch of reasoning, be termed as a
judgment or order determining finally the rights of the parties. The
appellants could not, from reading of the impugned order,
demonstrate that the learned Single Judge i.e. Contempt Court has
issued any fresh directions which are beyond the scope of the
judgment of Writ Court and therefore, we must hold the appeal
against the impugned order dated 16.06.2023 maintainable under
Clause 12 of Letters Patent.
12. For the foregoing reasons, we do not find any merit in the instant
appeal, the same is, accordingly, dismissed along with connected
CM(s).
13. Interim directions, if any, shall stand vacated.
(Mohan Lal) (Sanjeev Kumar)
Judge Judge
JAMMU
13.10.2023
Manan
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
