Jammu & Kashmir High Court - Srinagar Bench
Nazir Ahmad Mir And Ors vs Shalinder Kabra And Ors on 14 February, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
13
Regular List
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
CPSW No. 331/2013
Nazir Ahmad Mir and Ors.
..... Petitioner (s)
Through: Mr. G A Lone, Adv.
V/s
Shalinder Kabra and Ors.
..... Respondent(s)
Through: Mr. Syed Musaib, Dy. AG
Coram:
Hon'ble Mr. Justice Sanjay Dhar , Judge.
ORDER(Oral)
14.02.2024
1. Vide order dated 19.09.20212 passed by the writ Court, the writ
petition filed by the petitioners was allowed and the respondents
were directed to consider the case of the petitioners for their
appointment against the Class-IV post.
2. The respondents have filed a series of statement of facts in which
they have taken a plea that the direction of the Court was to consider
the appointment of the petitioners against a Class IV post which they
have done and the claim of the petitioners has been found to be
devoid of merit. Thus, according to the respondents, the order of the
writ court stands complied with.
3. It seems that this Court on 22.08.2017 had an occasion to consider
one of the statement of facts filed by the respondents and after
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consideration of the same, the Court feeling dissatisfied with the
stand taken by the respondents, directed compliance of the judgment
of the writ Court. It was also observed in the said order that the
order directing consideration of the case of the petitioners has been
passed by the Court after taking into account all the issues involved
in the matter the said issues have been re-agitated by the respondents
in their statement of facts, which they could not do.
4. After passing of the aforesaid order, another statement of facts has
been filed by the respondents in which a similar stand has been
taken and the respondents. In doing so the respondents have relied
upon the judgment of the Supreme court passed in Civil Appeal No.
4433-4436 of 2021 (arising out of SLP (C) No. 11316-11319 of
2021 titled case titled Commissioner/Secretary to Government
Education Department J&K and Ors. Vs. Mohd Amin Waza and
another. It has been submitted that the direction of the writ Court
was to consider the case of the petitioner which they have done and
thus no case for proceeding under Contempt of Courts Act is made
out against the respondents in view of the ratio laid down by the
Supreme Court in the aforesaid judgment.
5. I have heard learned counsel for the parties and perused the record.
Page |3
6. The consideration order was passed by the respondents on
29.12.2015 primarily on the basis of the assertion that at the relevant
point of time, Class-IV posts had already been utilized and filled up
by the Deputy Commissioner concerned while making
compassionate appointment under SRO-43 of 1994 . It has also been
stated in the aforesaid consideration order that the Advertisement
Notice pursuant to which the appointments are being sought by the
petitioners was deemed to have been withdrawn by the General
Administration Department in terms of the Government Order No.
683-GAD of 1999 dated 14.06.1999.
7. If we have a look at the order of the writ Court sought to be
implemented, it is clear that the petitioners had challenged the
Government Order No. 683-GAD of 1999 dated 14.06.1999 and also
the communication dated 30.03.2002. The writ Court has taken into
consideration in its judgment the assertion of the respondents
regarding utilization of posts by the Deputy Commissioner and has
also noticed Government Order dated 14.06.1999, whereafter the
writ Court has allowed the writ petition and passed a direction to the
respondents to consider the case of the petitioners for their
appointment against Class-IV posts.
Page |4
8. It is thus clear that the consideration order passed by the respondents
is based on the same very facts and contentions that were considered
by the writ Court while allowing the writ petition. In the judgment
of the Supreme court relied upon by the respondents it has been
clearly noted by the Supreme Court that the principle challenge to
the selection process was not adjudicated by the Supreme Court,
whereas in the instant case, the writ Court has allowed the prayer of
the petitioners, which in other words means that effect of
communications and the facts relied upon by the respondents in the
consideration order was subject matter of adjudication in the order
passed by the writ Court. In these circumstances, it does not lie in
the mouth of the respondents to reject the claim of the petitioners by
basing their order on the same contentions that were subject matter
of consideration before the writ Court.
9. The respondents were directed by the writ Court to "consider" the
appointment of the petitioners against Class-IV vacancies. The
word "consider" in ordinary sense means to think about something
carefully in order to make a decision. It means application of mind
to the facts and taking of an informed decision in light of the
circumstances of a particular case. Consideration does not mean
taking a decision without application of mind in a mechanical
Page |5
manner. Therefore, the respondents were obliged to examine the
claim of the petitioners in light of what was discussed in the
judgment of the writ Court.
10.The contention of the respondents that they were only directed to
consider the claim of the petitioners, which they have done and
therefore, no contempt proceedings can be initiated against them, is
without any merit. This is so because the respondents, while issuing
the consideration order, have gone by the letter of the order of the
writ Court and not by its spirit. What the respondents were
expected to do was to take into account the spirit of the judgment of
the writ Court and thereafter pass consideration order, which they
have failed to do in the instant case. Therefore, the compliance
report and the consideration order made by the respondents cannot
be termed as compliance of the judgment of the writ Court.
11.In view of the above, one last opportunity of two weeks is granted to
the respondents to comply with the direction of the writ Court in its
letter and spirit failing which proceedings under Contempt of Courts
Act shall be initiated against the officers responsible.
12.List on 25.03.2024.
(Sanjay Dhar )
Judge
SRINAGAR
14.02.2024
Aasif
