Jammu & Kashmir High Court - Srinagar Bench
U.T Of J&K Thr. Commissioner/ vs Dr. Syed Javid Farooq Qadri on 14 February, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Page 1 of 3
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 1119/2022 in
[LPA No. 37/2022] c/w
LPA No. 184/2023
1. U.T of J&K thr. Commissioner/
Secretary to Govt. Health &Medical Education Department, Civil
Secretariat, Srinagar/Jammu.
2. Director Health Services
Kashmir, Srinagar.
...Applicant/Appellant(s)
Through: Mr. Sajad Ashraf, Government Advocate.
Vs
Dr. Syed Javid Farooq Qadri
S/O Syed Farooq Ahmad Qadri
R/O Reyazath Tengh, Khanyar, Srinagar
... Respondent...
Through: Ms. Sharaf Wani, Advocate.
CORAM:
HON'BLE MR JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
14.02.2024
(ORAL)
1. Heard on CM No. 1119/2022, which is an application filed by the
applicants/appellants in LPA No. 37/2022, aggrieved by the
judgment and order dated 26.06.2018 passed in SWP No.
502/2016.
The brief facts are as follows:-
2. The respondent in the aforementioned appeal pursued his higher
qualification, i.e., DNB course without approval of his
department. The respondent had prayed for that his period of
absence during which he pursued his DNB course be treated as
deputation. As that was turned down, the respondent, Dr. Syed
Javid Farooq Qadri filed SWP No. 502/2016 which was allowed
by the learned Single Judge vide order dated 26th June, 2018,
whereby the U. T of J&K was directed to treat the respondent
herein in parity with Dr. Mohammad Younis whose period of
absence while pursuing higher course was treated by the appellant
U.T. as on deputation. As the appellant was not complying with
the order dated 26.06.2018, the respondent filed CCP(S) No.
445/2019 in which case, the appellant appeared before the
CM No. 1119/2022 in
contempt Court and informed the Court that they have withdrawn
the order granting benefit of deputation to Dr. Mohammad Younis
by passing an order dated 19.06.2023. Thereafter the learned
Single Judge in the contempt case passed an order dated
12.07.2023, in which it held that the subsequent withdrawal of
the benefit of deputation granted to Dr. Mohammad Younis will
not exempt the appellant from not complying with the order
dated 26.06.2018, and directed the appellant to ensure compliance
of the said order.
3. The LPA No. 37/2022 has been filed, challenging the correctness
of the order dated 26.06.2018 and the LPA No. 184/2023 has been
filed against the order dated 12.07.2023, passed in contempt
petition.
4. The present application has been filed for condoning the delay of
1290 days in filing the LPA No. 37/2022. During the course of
hearing on the application for condonation of delay, this Court
vide order dated 1st November, 2022, directed the appellant No. 2-
Director Health Services Kashmir to file a better affidavit in
support of the application seeking condonation of delay. The said
"better affidavit" was filed on 13.10.2023. In the said affidavit, in
paragraph-3 the deponent Mr. Mushtaq Ahmad Rather states that
on 26.02.2019, the Administrative Department forwarded a copy
of impugned judgement and order dated 26.06.2018, passed in
SWP No. 502/2016 to the appellant department with the request to
examine the case and furnish report with specific
recommendation. Thus paragraph-3 itself shows that the first step
against the order dated 26.06.2018 was taken after a delay of eight
months for which there is no explanation in paragraph 3 of the
affidavit. In paragraph-4, the deponent states that on 5th August
2019, Article 370 of the Constitution of India was abrogated,
resulting in the enactment of the Jammu and Kashmir
Reorganization Act, 2019 and, therefore, follow-up of the case
could not be maintained for "considerable period of time". The
paragraph-4 would further reveal that a period of six months
before 5th August, 2019, has also not been explained by the Union
Territory of J&K. The conjoint reading of paragraphs 3 & 4 itself
CM No. 1119/2022 in
reveals that there was an unexplained delay of 12 months.
Thereafter in paragraph 6 of the affidavit the deponent gives cause
of Covid-19 pandemic as the reason of further delay, where the
deponent states that the U.T. of J&K and the department being
directly associated with the control and prevention of spread of
Covid-19 disease, all other activities took a back seat.
5. We specifically asked the counsel for the U.T. to inform the
Court as to what actions were taken by the department between
26.06.2018 (the date of the impugned order) and
August, 2019 (Abrogation of Article 370), which period is more
than one year and two months. No answer has been forthcoming
from the learned counsel for the appellant, representing the U.T.
Taking the said period along with 12 months recorded
hereinabove, there appears a total delay of more than two years
which is absolutely unexplained by the appellant/U.T. of Jammu
& Kashmir. It appears that move for filing the LPA was initiated
after the contempt petition was filed by the Respondent-writ
petitioner. The delay of two years reflects that there was no
sincerity in expeditiously pursuing the remedy of LPA against the
judgement and order dated 26.06.2018 passed in SWP No.
502/2016, therefore, we are of the considered opinion that the said
order dated 26.06.2 018 was lawful.
6. Under these circumstances, in view of what has been argued,
considered and observed and held by us, CM No. 1119/2022, is
dismissed. As a consequence thereof, the LPA No. 184/2023 filed
by the appellants, aggrieved by the order dated 12.07.2023, passed
in the contempt petition which mandated the compliance of the
order 26.06.2018, which is challenged in LPA No. 37/2022, which
stands dismissed on account of the condonation of delay
application, being dismissed, nothing survives in this LPA and as
a consequence thereof same is also dismissed.
7. Both the LPAs are dismissed along with connected CMs.
(MOKSHA KHAJURIA KAZMI) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR
14.02.2024.
Ab. Rashid, PS.
CM No. 1119/2022 in
