Union Territory Of Jk & Ors vs Mubarak Ahmad Padder & Ors
2024 Latest Caselaw 158 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Union Territory Of Jk & Ors vs Mubarak Ahmad Padder & Ors on 28 February, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                                           Sr. No. 1
                                                           Regular Cause List

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                            CM No. 1344/2020
                            LPA No. 46/2020

Union Territory of JK & Ors.                       ...Petitioner(s)/Appellant(s)

Through:   Mr. Mubeen Wani, Dy. AG with Ms Nadiya Abdullah, AC

                                    Vs.
Mubarak Ahmad Padder & Ors                                   ...Respondent(s)

Through:   Mr. Sheikh Mushtaq, Adv. for 1 and 2
           Ms. Masooda Jan, SC for 3
CORAM:

HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                ORDER

28.02.2024

Per Atul Sreedharan

1. The present appeal has been filed by the appellants-Union Territory of JK & others who are aggrieved by the order passed by the learned Single Judge dated 01.09.2016. By the said order, the learned Single Judge was deciding the case of the respondents who were employed as Store-Keepers on regular basis in the Consumer Affairs and Public Distribution Department (CAPD) and had retired from the service on reaching the age of superannuation in the year 1998. Before the learned Single Judge, they had stated that the persons juniors to them were given benefit of up-gradation of their pay scale of Rs. 4500-7000 by way of various government orders. The petitioners had approached the respondents that they be treated likewise. However, as there was no response, the respondents/petitioners in the original writ petition, filed a writ petition before this Court in the year 2000 which writ petition was disposed of by this Court with a direction to the respondents to consider and dispose of the representation filed by the petitioners with regard to the benefit of up-gradation of pay in the scale of Rs. 4500-7000. This direction of the learned Single Judge

passed in the 2000 petition has not been complied with which compelled the respondents to prefer the writ petition again in the year 2009. It is that petition, which has been disposed of by the order dated 01.09.2016 passed by the learned Single Judge, which is under challenge.

2. The learned Single Judge disposed of the writ petition by observing therein that there was a contempt petition also preferred by the respondents after which an order No. 61-CAPD of 2008 dated 20.05.2008 was passed granting the benefit notionally from 01.04.1995 and monetary benefit from 20.05.2008. The learned Single Judge held that no reason was mentioned in the said order as to why the petitioners, who are otherwise entitled to the monetary benefit from 01.04.1995, have not been granted the same. It further held that as the respondent/appellants herein have passed the order of upgrading the pay scale of petitioners' w.e.f. 01.04.1995 though notionally, the Court held that the petitioners/respondents herein were entitled to the said benefit of up-gradation of pay scale as was granted to their juniors. Thereafter, the court held that as the respondents herein were agitating the matter and were cognizant of their rights, the denial of arrears from 01.04.1995, without any basis, cannot be sustained and thereafter, the impugned order in the writ petition of 2009 was set- aside by the order under challenge and respondents were directed to pass fresh orders for stepping up of pay scale of the petitioners from 01.04.1995 and directed that necessary orders be passed by the Secretary, CAPD Department within a period of eight weeks.

3. Thereafter, the appellants slept over the matter for four years and have filed LPA against the aforementioned order belatedly in the year 2020. Para 4 of the condonation of delay application reflects that the record relating to the petitioners was destroyed in 2014 floods on account of which the appellants herein were impeded from passing necessary orders in their case also. Orally, it was stated that if the respondents are given the benefit, it will open a flood gate for several others seeking similar relief, but that has not been specifically mentioned in the condonation of delay application. It is also relevant to mention here that the order of the learned Single Judge was a bi-party order.

4. The argument that records were destroyed in the floods of 2014 was not taken before the learned Single Judge and has not been taken before this Court in the condonation of delay application. During hearing of this application, learned counsel for the appellants has drawn the attention of the Court first to the order dated 06.03.2020 with specific reference to paragraph No. 2 where this Court had observed as under:

"however, at the same time, we could feel the concern of the applicants projected in the application as regards burdening the Government exchequer with huge financial liability and anticipation of huge litigation on the same count."

5. In paragraph No. 4 of the said order, the court further held that:

"it would be quite opportune to mention here that the Law Department of the Government of J&K, has accorded its sanction for filing of LPA in terms of communication No. LD (lit) 2009/02-FCSCA dated 12.07.2019 and almost after seven months of the date of according sanction, the application seeking condonation of delay, accompanying the LPA, is filed before us. It is very regrettable that the applicants/appellants, by their callous attitude, have contributed to the damage, if any, caused to the Government exchequer, but in the application, they are all out in highlighting themselves as custodians of the same. We request the Chief Secretary of the J&K to fix responsibility on the erring officials/officers who are found to have contributed in delaying the matter. He would also be at liberty to take action against such persons without waiting for any further direction from this Court in that behalf. The Court shall appreciation the action taken and reported to the Court."

6. The next order that has been referred to by the learned counsel for the respondents is the order dated 25.07.2022 which is a daily order that has been passed in this case. The order deserves to be quoted in full:

"Sh. Sheikh Feroz, learned Dy. AG learned counsel for the appellants after arguing for a while, submits that the respondents would pass fresh orders for stepping up of the pay scale of the petitioners from 01.04.1995 and necessary orders in this regard would be passed by the Secretary, CAPD Department, within a period of six weeks in view of the judgment and order dated 01.09.2016 passed by learned Single Judge, in SWP No. 224/2019. The consideration order be placed on record by means of an affidavit.

List on 07.10.2022."

7. Thereafter, the next order to which the attention of this Court has been drawn by learned counsel for the appellants is the order dated 28.11.2022. We reproduce the order in its entirety:

"When this matter was taken up for consideration, learned counsel appearing for the appellants submits that there is no scope for implementation of the order of the Single Bench, unless the appeal is decided. His statement is taken on record. In modification of the order passed on 25.07.2022, let the appeal be listed for consideration and decision on merits on 23.12.2022."

8. Learned counsel for the appellants submits by drawing attention of this Court to order dated 06.03.2020 and 28.11.2022 having reproduced hereinabove that the Court had impliedly condoned the delay.

9. It is also relevant to mention here that after the order dated 28.11.2022, when the matter was listed on 07.04.2023, it was listed for orders on CM No. 1344/2020 which was still pending on that date which is the application for condonation of delay.

10. As regards this argument, we respectfully differ from the opinion of the learned counsel for the Union Territory. The order dated 06.03.2020 and the order dated 28.11.2022 do not specifically mention anywhere that the application for condonation of delay has been allowed and the delay of over four years has been condoned by

this Court. At the most, it reflects what passes through the mind of the learned Bench at that time that the case if not decided on merits may have financial implication for the Union Territory. As regards the order dated 28.11.2022, the same modifies the earlier order dated 25.07.2022 which is also reproduced hereinabove, which recorded the statement of learned Dy. AG who after arguing for a while informed the court that the respondents would pass a fresh order for stepping up of the pay scale of the petitioners from 01.04.1995 and necessary orders in this regard would be passed by the Secretary, CAPD Department within a period of six weeks in view of the judgment and order dated 01.09.2016. In other words, the Union Territory appeared before this Court and made a categorical submission that it would comply with the order under challenge dated 01.09.2016 and give the benefit of stepping up of pay scale to the respondents herein. However, instead of doing that, on 28.11.2022, the State once again does a volte face and informs the Court that the order of the learned Single Judge cannot be implemented.

11. The question before us is whether there is an implied condonation of delay as the order dated 28.11.2022, lists the case for consideration on merits on 23.12.2022. We are of the opinion that the said order is not an implied condonation of delay as it has not heard the respondents opposition to the condonation of delay in order to take a considered decision after hearing the case of both the sides, whether the condonation of delay application was to be allowed in the interest of justice. More-so, in a case of this nature where delay is more than 4 years (1277 days), the delay could not have been perfunctorily condoned by two lines in the order dated 28.11.2022. Therefore, we firstly reject the arguments put forth by the learned counsel for the appellants that there has been implied condonation of delay of 1277 days by this Court vide order dated 28.11.2022.

12. We have considered CM No. 1344/2020 which is the application for condonation of delay. All that it says is that the records pertaining to the respondents herein were destroyed in the floods and it took them time to reconstruct the file of the respondents. It is essential to mention here that the order of the learned Single Judge under challenge dated 01.09.2016, does not reflect that any such contention

was put forth by the State which was a respondent therein, and whose counsel Mr. G. M. Reshi, who was Dy. AG, had appeared and argued the case had ever made any submission with regard to the records having been destroyed in the floods of 2014.

13. Under the circumstances, the reasons given in the application for condonation of delay are perfunctory. It is also essential to mention here that in the order dated 06.03.2020 which has been reproduced hereinabove, the Bench at that point of time had requested the Chief Secretary to fix responsibility on the erring officials who have contributed to the delay in filing the appeal which had occurred notwithstanding the fact that the Law Department had accorded, sanction for filing the LPA on 12.07.2019 and the LPA has been filed before this Court seven months thereafter. That order had also given the liberty to the Chief Secretary to take action against such persons who are responsible for the delay and he would be at liberty to take action against such persons without waiting for any further direction from this Court in that behalf and the Court shall appreciate the action taken is reported to the Court. Here, it is essential for us to mention that politeness on the part of the Court when it uses the word "request" still is a direction. However, the fact that liberty has been given to the Chief Secretary to take action against the persons and to report the same to the Court would mean that certain action was required on the part of the Chief Secretary to proceed in the matter and intimate this Court as to what he had done in order to take action against the erring officials for the delay.

14. From 06.03.2020 till date, this case has been languishing for four years, during which time, it has been listed 13 times, not once has the State shown the courtesy or intimating this Court with regard to the action taken by them against the erring officials, in fact, the State has not even intimated the Court whether they had ever initiated a process of identifying such officials who were responsible for the delay. We take great umbrage to this conduct on the part of the State in treating the High Court's orders so lightly.

15. In view of what has been argued before us, considered and held by us hereinabove, we do not find any merit in the application for condonation of delay and we hold that the delay has not been

adequately explained by the appellants. The application for condonation of delay is dismissed and, as a consequence of the same, LPA No. 46/2020 also stands dismissed.

     (MOKSHA KHAJURIA KAZMI)                  (ATUL SREEDHARAN)
                     JUDGE                               JUDGE
SRINAGAR:
28.02.2024
Altaf


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