Gurdeep Singh Aged 47 Years vs Shri B. R. Sharma
2023 Latest Caselaw 2285 j&K

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     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

CPSW No. 162/2017


1.     Gurdeep Singh aged 47 years                .....Petitioners/Appellants
       S/o Sh. Madho Lal R/o Tehsil
       Gandoh District Doda at present
       village Jarmal District Kathua.

2.     Khurshid Ahmad aged 40 years,
       S/o Shri Ghulam Qadir, R/o
       Kahara Chaba Tehsil Thathri
       District Doda.

3.     Tariq Hussain aged 47 years S/o
       Sh. Mohd Sharief Mir R/o Soti
       Dadwal, Tehsil Gandoh District
       Doda

                        Through: Mr. Anuj Dewan Raina, Advocate
R.
                                 Mr.Vishal Goel, Advocate
                  Vs
1.     Shri B. R. Sharma, IAS, Chief
       Secretary, J&K Government, Civil
       Secretariat, Jammu/Srinagar.

2.     Dr. M. K. Bhandari, IAS,
       Commissioner/Secretary to Government
       Health Department, J&K Government,
       Civil Secretariat, Jammu/Srinagar.

3.     Shri Khursheed Ahmed Shah,
       Commissioner/Secretary to Government
       General Administration Department,
       J&K Government, Civil Secretariat,
       Jammu/Srinagar.

4.     Gurjeet Singh, Director Health Services,
       Jammu.

5.     Dr. Kulbushan, Chief Medical Officer,
       Doda.
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                                                              CPSW No. 162/2017


6.    Shr. Mehmood Iqbal Khan,
      Block Medical Officer, Sub District
      Hospital, Gandoh.

                                                                  ..... Respondents
                         Through: Mr. Raman Sharma, AAG

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                JUDGMENT (ORAL)

13.10.2023

1) Through the instant contempt petition, the petitioners are seeking

implementation of order dated 29.04.2016 passed by writ court in SWP No.

2479/2009. The said order is reproduced as under:

"Learned counsel for the petitioners concedes that all the three petitioners have a right to be considered for regularization in terms of J&K Civil Service (Special Provisions) Act, 2010 and that the appropriate orders would be passed within a period of three months alongwith all consequential benefits.

Disposed of accordingly alongwith connected MP(s)."

2) It appears that prior to the final disposal of the writ petition, an interim

order came to be passed by the writ court on 30.10.2012, whereby the

respondents were directed to consider the case of the petitioners in light of

the provisions of J&K Civil Services (Special Provisions) Act, 2010

(hereinafter to be referred as "the Act of 2010"). Pursuant to the said order,

the respondents accorded consideration to the claim of the petitioners and

the same was rejected in terms of order No. DHSJ/Legal/7069-71 dated

03.12.2012 on the ground that the petitioners have been hired on need basis

to make the Ambulance services functional, as such, they do not fall in the

category of employees stated in the Act of 2010.

CPSW No. 162/2017

3) Statement of facts/compliance report stands filed on behalf of the

respondents. In their statement of facts/compliance report, the respondents

have submitted that pursuant to the direction of the writ court, case of the

petitioners was forwarded to the Administrative Department, Health and

Medical Education Department for its consideration under the Act of 2010,

who in turn forwarded it to the Finance Department for placing the same

before the Empowered Committee constituted under the Act of 2010 for

scrutiny and verification of entitlement/regularization of the services of the

petitioners under the provisions of the aforesaid Act. It has been submitted

that the Empowered Committee in its 59th meeting held on 30.05.2017 has

decided that the case of the petitioners does not fall within the mandate of

the Committee as the petitioners have been engaged on need basis.

Accordingly, the claim of the petitioners for regularization of their services

under the Act of 2010 has been rejected in terms of Order No.

DHSJ/legal/628-33 dated 12.04.2022 passed by the Director Health

Services, Jammu

4) Heard and considered.

5) Learned counsel for the petitioners has vehemently contended that the

consideration accorded to the cases of the petitioners by the respondents in

terms of order dated 12.04.2022 (supra) is not in tune with the directions of

the writ court. According to the petitioners, the claim of the respondents that

they were appointed on need basis and not on contractual/consolidated pay,

is contrary to the available record. Therefore, very basis of the consideration

order is erroneous. Relying upon the judgment of Telangana and Andhra

Pradesh High Court in the case of S. Kiranmayi vs. Sri N. Sambasiva Rao,

CPSW No. 162/2017

Managing Director, APSRTC, RTC House, Pandit Nehru us Station,

Vijayawada and others, 2017 (3) ALT 648, it has been submitted that the

respondents have not complied with the judgment of the writ court in its

spirit. According to learned counsel for the petitioners, to consider does not

mean to search for a lame excuse and reject the claim but it means to make

all efforts to fulfill the object of the order of the Court.

6) Per contra, learned AAG appearing for the respondents has submitted

that as per the available record, the petitioners were appointed on need

basis, therefore, in terms of Section 3 of the Act of 2010, they did not fall

under the eligible category of persons entitled for regularization of their

services under the said Act.

7) The crux of the matter is the nature of engagement of the petitioners.

If they fall within the category of adhoc, contractual or consolidated paid

employees working against clear vacancies, then the stand taken by the

respondents cannot be countenanced in law but in case it is prima facie

shown that there is any doubt as to the status of engagement of the

petitioners, the respondents cannot be hauled up for having committed

contempt of Court.

8) If we have a look at the writ record, which is attached to the contempt

petition, the petitioners have placed on record their engagement orders. As

per engagement order dated 19.07.2007, issued by the Chief Medical

Officer, Doda, the petitioner, Gurdeep Singh has been engaged as Driver on

need basis with the monthly consolidated remuneration of Rs. 25,000/-.

Another order dated 14.07.2008, issued by the District Development

CPSW No. 162/2017

Commissioner, Doda, shows that petitioners, Gurdeep Singh, Khurshid

Ahmad and Tariq Hussain have been engaged as Drivers for a period of 89

days with a usual break on need basis to make Ambulances of PHC, Tipri,

Malanoo, Changa and Goha functional for providing medical facilities to the

poor and ailing patients. A similar order in favour of the petitioners has been

issued by the District Development Commissioner, Doda on 26.04.2008,

which forms part of the writ record.

9) Alongwith the contempt petition, the petitioners have placed on

record, a copy of application dated 30.03.2015, addressed by petitioner,

Gurdeep Singh to the Director, Health Services, Jammu, in which the said

petitioner has clearly admitted that he has been engaged on need basis and

he has prayed that his engagement be converted to one on contractual basis

on the basis of the recommendation made by the Health and Medical

Education Minister. Another document, styled as continuance certificate, has

also been placed on record of the contempt petition by the petitioners, which

shows that the petitioner, Gurdeep Singh has worked as a Driver on need

basis at Primary Health Centre, Changa. Another communication dated

06.05.2015 addressed by the Director Health Services, Jammu to Chief

Medical Officer, Doda shows that the case of the petitioner, Gurdeep Singh

was recommended for engagement on contractual basis by the Chief Medical

Officer, Doda and District Development Commissioner, Doda. All the

aforesaid documents are being relied upon by the respondents to contend

that the petitioners were engaged on need basis and not on contractual or

consolidated wages.

CPSW No. 162/2017

10) As against this, the petitioners have relied upon communication dated

07.07.2007, whereby the Chief Medical Officer, Doda has communicated to

District Development Officer, Doda that petitioners, Gurdeep Singh and

Tariq Hussain have been recommended by MLC Kh. Mohammad Sharief

Niaz for their appointment as drivers on contractual basis and a request has

been made for their appointment on contractual basis. The petitioners have

also relied upon communication dated 21.11.2012 addressed by the Block

Medical Officer, Gandoh to Chief Medical Officer, Doda, wherein it has

been stated that the petitioner, Gurdeep Singh has been appointed on

contractual/need basis in terms of District Development Commissioner

Doda's order dated 12.07.2007 and CMO Doda's order dated 19.07.2007. It

is also indicated that the petitioner, Tariq Hussain has been appointed on

contractual/need basis in terms of District Development Commissioner,

Doda's order dated 12.07.2007 and petitioner, Khurshid Ahmad has been

appointed in terms of order District Development Commissioner, Doda's

order dated 31.05.2007 and CMO Doda's order dated 31.05.2007. Reliance

has also been placed on communication dated 29.01.2011 addressed by the

Block Medical Officer, Gandoh to the Chief Medical Officer, Doda, in

which it has been indicated that the petitioners are working on need

basis/contractual basis against clear vacancies. Reference has also been

made to communication dated 06.05.2015 addressed by the Director, Health

Services Jammu to the Chief Medical Officer, Doda, in which it has been

conveyed that because recommendation for engagement of the petitioner,

Gurdeep Singh was made for appointment on contractual basis by the Chief

Medical Officer, Doda and District Development Doda had approved drawal

CPSW No. 162/2017

of their pay against the vacant posts, as such, a clerical mistake must have

cropped up while issuing the engagement order, which mentions the

appointment of the petitioner, Gurdeep Singh on need basis. The petitioners

have also submitted that at the time of passing of dated 29.04.2016, the

counsel appearing for the respondents has conceded that the petitioners have

a right to be considered for regularization in terms of Act of 2010.

Therefore, the respondents cannot now turn around and say that the

petitioners are not eligible for regularization under the Act of 2010.

11) From the documents relied upon by the petitioners, prima facie, it

does appear that initially the engagement of the petitioners was made on

need basis for driving the Ambulances attached to the designated Health

Centres. This view is supported by the documents produced by the

petitioners along with their writ petition and the contempt petition, reference

whereof has been given herein before. So far as documents upon which

reliance has been placed by the respondents are concerned, the said

documents do not in clear terms establish that the petitioners were engaged

either on contractual basis or on consolidated wages. Thus, so far as the

status of engagement of the petitioners is concerned, there is a reasonable

doubt about the same and it is not clear whether they were engaged on need

basis or their engagement was made on contractual/consolidated wages

basis.

12) The fact that two possible views can be taken as regards the status of

engagement of the petitioners, it cannot be stated that the respondents by

rejecting the claim of the petitioners have deliberately and intentionally

violated the order passed by the writ court. They, therefore, cannot be

CPSW No. 162/2017

proceeded for having committed the contempt of the Court. It is only, if a

person intentionally and deliberately violates the order of the court that he

can be proceeded for having committed contempt of the court. In a case

where two views are possible while considering the implementation of the

court order and the alleged contemnor take a particular view which may not

be favorable to the person seeking implementation of the order of the court,

a case for initiation of contempt proceedings cannot be made out.

13) So far as contention of the petitioners that counsel for the respondents

have made a concession that the petitioners were eligible for being

consideration is concerned, the same would not make any difference for the

reason that what the counsel for the respondents has conceded is that the

petitioners have a right to consideration for regularization in terms of Act of

2010. The counsel has no where conceded the eligibility of the petitioners

for their regularization.

14) In view of the above, no case is made out for proceeding against the

respondents. The contempt proceedings are closed and the contempt petition

is dismissed, leaving it open to the petitioners to challenge the consideration

order by way of appropriate proceedings. Nothing observed in this order

shall be taken as an expression of opinion on the merits of the claim of the

petitioners as regards their status.

(SANJAY DHAR) JUDGE Jammu 13.10.2023 Karam Chand/Secy

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No