Jammu, Sept 3: In CPSW No.245/2017 titled Nawab Din Vs Mohd. Afzal and others after hearing HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE ORDERED as:-
01. Petitioner-Nawab Din filed SWP No.1928/2006 seeking directions to the State and its functionaries in the Forest Department for his regularization in Government service and release of salary with effect from September 2005.
02. The case was contested by the State and their objections for granting such relief was that petitioner was not entitled to regularization in view of the provisions of the Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules 1994.
03. This Court while taking into consideration the claim of the petitioner and objections raised by the State-respondents decided the writ petition with following directions:- “The respondents are, therefore, required to comply with the directions issued in SWP No.1641/01 and the orders passed in COA(S) No.25-A/02.
This writ petition, therefore, succeeds. It is, accordingly, allowed with costs quantified at Rs.10,000/- (Rupees Ten thousand). A direction shall issue to the State-respondents to pass requisite orders for petitioner’s regularization in service with effect from the date he became entitled thereto after completion of seven years’ of continuous daily wage service. Remaining Arrears of salary, if any, be released forthwith in his favour.”
04. As the said judgment was not implemented, petitioner approached this Court by filing this contempt petition being CPSW No.245/2017 in which respondents were directed to file statement of facts/compliance report vide order dated 11.07.2017, thereafter opportunities were granted to them to file the compliance report, however, the same was filed by the respondents on 08.05.2018.
In the said compliance report respondent-Divisional Forest Officer submitted that the committee headed by the Secretary to Government, Finance Department, J&K Government has to pass the order of regularization in favour of the petitioner in terms of the Government Order No.139-F of 2015 dated 19.08.2015. Thereafter again on 24.09.2018 respondents were directed to file fresh compliance report in terms of order dated 08.05.2018.
The said report was required to be filed within three weeks, however, the same was filed on 11.01.2019 wherein it was reported that the case of the petitioner was processed for regularization under SRO 520 of 2017 and in the said compliance report, it was made clear that the final regularization order was to be passed in a short period of time.
05. Thereafter, on 20.12.2022 none has appeared on behalf of the respondents and the matter was adjourned to 24.02.2023 for their appearance, however, on that date it was made clear that if none appears on behalf the respondents, the respondent No.-2 shall appear in person along with the record.
On 24.02.2023 Mr. Dewakar Sharma, Dy. AG appeared and sought three weeks’ time to file updated status report which was again not filed within the stipulated time and on 10.04.2023 last and final opportunity was granted to Mr. Dewakar Sharma, Dy. AG for implementation of the judgment and it was further made clear that in case of failure in implementation of the judgment respondents shall appear in person before the Court. 06. Again this Court on 12.06.2023 ordered as under:-
“Respondents in their compliance report dated 28.04.2023 submits that after the order dated 10.04.2023, they had taken up the matter with Department of Law, J&P.A. vide communication dated 17.04.2023 for their advice and the same was conveyed to General Administration Department but they are still waiting the advice of the Department of Law, J&P..
The petitioner has been denied regularization after rendering the judgment by this Court 2012 which was allowed with costs of Rs.10,000/-. As such, still the judgment has not been implemented by the State/respondent, in the interest of justice last and final opportunity of four weeks’ is granted to the respondents to file compliance report in tune with the judgment and issue necessary orders in terms of judgment, failing which, respondent No.1 shall appear in person on the next date of hearing. List on 19.07.2023.”
In pursuance of the said order respondents filed compliance report which was taken into consideration by this Court on 11.08.2023 and passed following order:-
“Compliance report has been filed by Dy. Conservator of Forests Monitoring and Evaluation Department of Social Forestry, J&K. From the perusal of the aforesaid compliance report, it is clear that respondents have not complied with the judgment which is under challenge in this contempt petition.
The respondents have annexed communication dated 22.06.2023, which has been addressed to Director, Department of Social Forestry, J&K on record by one-Suhail Hassain Tantray, Deputy Legal Remembrancer.
The relevant portion of the aforesaid communication is reproduced as under:- "Returned. The General Administration Department, in consultation with Department of Law, Justice and Parliamentary Affairs, has firmed up the following view:
a. All the engagements made illegal are void ab-initio same would not give any justiciable right to the illegal appointee to claim regularization. The said principle has been upheld by the Hon’ble Supreme Court in State of Karnataka Vs. Uma Devi and ratio of the said case can be taken as a defense before the concerned forum to deny regularization of an illegal engagement.
b. Where the Hon’ble Court have passed directions, in a particular case for regularization of an engagement and contempt proceedings have been initiated, the Department may project and express the inability to implement the said directions, in view of the fact that such action would contravene and in fact the express directions laid down in Uma Devi case and other similar binding precedents. The Department is advised to take further action accordnlgy”
A perusal of the said communication makes it clear that the respondents have committed willful defiance of the judgment passed by this Court. The communication has been addressed to Director, Department of Social Forestry, J&K by Mr. Suhail Hassain Tantray, Deputy Legal Remembrancer who has shown willful defiance of the judgment passed by this Court, therefore, he is required to be impleaded as party respondent/contemnor in this case.
Notice be issued to him to show cause as to why contempt of Court proceedings for willful defiance of the judgment passed by this Court be not initiated against him. Mr. Suhail Hassain Tantray, Deputy Legal Remembrancer and other respondents shall remain present before the Court on the next date of hearing.
08. The judgment passed in the case of the petitioner way back in the year 04.06.2012 has not been implemented so far. When the matter was taken up today, the contemnor name in the petition as well as Mr. Suhail Hassain Tantray, Deputy Legal Remembrancer, did not appear.
However, Mr. Suresh Kumar Gupta, Project Director Social Forestery, Mr. Naveed Iqbal, DFO and Mohd. Hussain, Range Officer, who have joined in places of respondent Nos. 2, 3 & 4, are present in person. They having been posted in place of 6 CPSW No.245/2017 respondent Nos.2 to 4 are thus impleaded as respondents, as the judgment is yet to be complied with.
09. Respondents in the petition and Mr. Suhail Hassain Tantray, who was impleaded as respondent on the previous date of hearing are not present. They were required to remain present to show cause as to why the contempt proceedings be not initiated against them because they have prima facie shown willful disobedience of the orders passed by this Court.
Mr. Suhail Hassain Tantray by giving his opinion has committed gross contempt, as his opinion regarding counter to the direction passed by this Court. There is no reason shown for their non-appearance.
The judgment which is passed in the year 2012 has not been implemented and the non-compliance is willful. The new incumbents, who have appeared in the Court today shall file compliance report as the stated that they would comply with the judgment within a week’s time.
A week’s time is granted to comply with the judgment in letter and spirit, failing which, they will have to facing contempt proceedings.
10. Mr. Amit Gupta, learned AAG appearing on behalf of the respondents submits that he has made an application for exemption of Mr. Suhail Hassain Tantray, Deputy Legal Remembrancer. The said opinion is contrary to the direction passed by the Court and it appears that he has tried to outrage the judgment by giving such opinion.
From the perusal of his opinion, it is clear that the judgment passed by this Court will not be implemented.
The application which is stated to have been filed for exemption of the said respondent, is not listed today. Even otherwise, having regard to his conduct and the opinion given by him regarding the implementation of the judgment he would not be entitled to exempt.
Prima facie a case is made out that he has committed contempt of Court.
11. Registry is directed to frame Robkar against the respondent-Suhail Hassain Tantray and after framing the Robkar issue notice to him to show cause as to why he be not punished for having committed contempt of Court.
12. List on 20.09.2023.
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