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2014 DIGILAW 330 (JK)

Hamid Ullah Dar v. State Of J&K

2014-08-08

Hasnain Massodi

body2014
1. Challenge in the main petition i.e. SWP No. 487 of 2009, is to select list of Naib-Tehsildars notified by Service Selection Recruitment Board (SSRB) on 08.09.2009. Applicants find place in the select list and are therefore arrayed as respondents (i.e. respondents 10,11,14,21 to 25, 73, 75, 83, 92 to 96, 98, 99 and 104) in the writ petition. They vide order dated 10-04-2012, were set ex parte and through medium of instant application seek setting aside of ex parte proceedings. 2. Applicants/respondents' case is that they after the select list, wherein they figure amongst selected candidates, was notified vide Notification No. FC(A) Misc-74/2009 dated 22.10.2009, were appointed as Naib-Tehsildars and have been discharging their duties as such for last four years; that they on their appointment were posted at different places and therefore did not have any knowledge about pendency of the petition or the substituted service i.e notice published in local dailies requiring them cause their appearance in the matter. It is pleaded that Shri Kaiser Ahmad Zargar (respondent No. 14) posted in the office of Financial Commissioner, (Revenue) acquired knowledge about pendency of the petition, examined the communication addressed by the Financial Commissioner, (Revenue) to the Administrative Officer regarding the writ petition and thereafter on enquiry from Advocate General office came to know that he and other applicants were set as ex parte on 10th April 2012. It is pleaded that the applicants did not have knowledge about pendency of the writ petition or the notice published in local dailies. It is insisted that the applicants did not willfully and deliberately stay away from the proceedings. It is further pleaded that though the official respondents have filed their reply to the petition but the applicants being affected parties, intend to put forth their stand. The application is supported by an affidavit sworn by Mr. Kaiser Ahmad Zargar one of the applicants (respondent No. 14). 3. The application filed on 26.09.2013 is opposed by the writ petitioners on the ground that the applicants/ respondents, after filing the application on hand have not prosecuted the application for about a year; that in the meantime, arguments in the main petition stands almost concluded except arguments in rebuttal by counsel for the writ petitioners. 3. The application filed on 26.09.2013 is opposed by the writ petitioners on the ground that the applicants/ respondents, after filing the application on hand have not prosecuted the application for about a year; that in the meantime, arguments in the main petition stands almost concluded except arguments in rebuttal by counsel for the writ petitioners. It is pleaded that as the main writ petition is ripe for final disposal, the application for setting as ex parte would not be maintainable and the only option left to the applicants/respondents would be to question the Judgment to be rendered by the court, if necessary, in appropriate proceedings. It is next pleaded that application is intended to prolong final disposal of the case so that illegality committed in selection of private respondents is perpetuated and not allowed to pass through judicial scrutiny. It is pointed out that notice was issued to applicants after the writ petition was amended and on their failure, the applicants were set initially ex parte on 31.3.2012; that after the writ petition was admitted to hearing on 22.2.2012, post admission notice was issued a second time to all respondents including the present applicant and as they fail to appear despite proper service they were set ex parte vide order dated 10th April 2012. Some of other respondents are said to have appeared through counsel on 19.2.2014, and though allowed to file counter affidavit failed to file their counter leaving no option with the court but to close their right to file counter vide Order dated 26 March 2014. The application, according to respondents/non-applicant is meritless deserves to be rejected. 4. I have gone through the application as well as objections filed by writ petitioners as also record relevant to the present controversy. I have heard learned counsel for the parties. 5. The threshold objection taken to the maintainability of the application by the writ petitioners may not sustain for the reason that the arguments in the main petition are yet to be concluded. True that learned counsel for the writ petitioners concluded his arguments and the matter was adjourned to enable learned counsel for appearing respondents to address arguments, to 19th May 2014. On the date fixed, i.e 19th May 2014, while arguments were being advanced by Mr. S. R. Hussain, counsel for the respondents, Ms. True that learned counsel for the writ petitioners concluded his arguments and the matter was adjourned to enable learned counsel for appearing respondents to address arguments, to 19th May 2014. On the date fixed, i.e 19th May 2014, while arguments were being advanced by Mr. S. R. Hussain, counsel for the respondents, Ms. Rehana, Advocate for applicants brought to the notice of court that application on hand for setting aside ex parte proceedings was yet to be dealt with and disposed of. Once pendency of application was reported, the matter was adjourned to enable counsel for writ petitioners to file his objections to the application. In the said background, hearing in the matter was not concluded on 19th May 2014, as projected by learned counsel for the petitioners. It is not a case where court should refuse to deal with the application for setting aside ex parte proceedings on the ground that as the case is reserved for judgment, nothing is pending before the court there is no adjourned date and Order 9 Rule 7 would not come into play. 6. Viewed thus the application cannot be dismissed as non-maintainable. The court is required to examine whether the applicants assign a "good cause" for their previous non-appearance. To find out whether a "good cause" is made out by the applicants to pursuade the court to set aside ex parte proceedings, the minutes of the proceedings are required to be noticed. 7. The writ petition was filed on 20th March 2009. It called in question the selection process on the ground urged in the petition. The petition came before the Bench on the aforesaid date and a notice was directed to be issued to respondents including present applicants. Registry report would reveal that registered notices were issued to respondents. The applicants/respondents, however, did not appear to contest the petition. During pendency of the writ petition official respondents notified the selected list vide Notification No. FC(A) Misc-74/2009 dated 22.10.2009. This necessitated amendment to the writ petition Leave to amend the petition was accordingly granted on 07th April 2010. The respondents 1 to 3 appeared through their counsel. Though registered notice were sent to respondent No. 4 to 110, they fail to appear. On 25th July 2011, notice to respondents 4 to 110 was directed to be published in a Daily Newspaper having vide circulation in the area where respondents resided. The respondents 1 to 3 appeared through their counsel. Though registered notice were sent to respondent No. 4 to 110, they fail to appear. On 25th July 2011, notice to respondents 4 to 110 was directed to be published in a Daily Newspaper having vide circulation in the area where respondents resided. The notice was published in August 4 2014, issue of "Kashmir Times" published from Srinagar. Respondents failed to appear despite publication of notice and were set exparte on 31st January 2012. 8. Petition was admitted to hearing on 22-2-2012. Post admission notice was again issued resorting to substituted service, to respondents 4 to 110. The notice was published in Daily "Kashmir Times" issue of 1st March 2012. The respondents including present applicants failed, to respond to the notice and were proceed exparte on 10/04/2012. Petitioners responded to reply filed by respondents 1 to 3, treated as counter affidavit at the request of counsel for respondents 1 to 3, on 13th September 2012. Petition came up for hearing, a number of times between 10.04.2012 i.e. the date respondents 4 to no were proceeded exparte, till Mr. Hussain entered appearance on behalf of respondents 15,58,59,60,62,63,64,69,70,71,77,85,86,101,106,107,109 and 110. Mr. Hussain on 4th May 2014. Mr. Hussain sought an adjournment enabling him to file application for setting aside exparte proceedings. Learned counsel for the petitioners keen to avoid any delay did not oppose Mr. Hussain's prayer for grant of leave to file counter affidavit on behalf of the respondents represented by him. Learned counsel for appearing respondents were accordingly allowed to file counter affidavit on behalf of aforestated respondents. However, the appearing respondents did not choose to avail opportunity and failed to file any counter affidavit in opposition to the writ petition. Therefore, their right to file counter affidavit was closed on 26.03.2014. 9. In the meantime, between 10.4.2012 and 19.2.2014 i.e. the date Mr. Hussain appeared on behalf of the aforementioned respondents, the matter was heard few times and effective orders were passed. To illustrate on 10th October 2012, a Committee of experts was constituted to examine the questions identified in the petition and the material collected by the petitioner thereafter, as wrong and vague and submit its report. Hussain appeared on behalf of the aforementioned respondents, the matter was heard few times and effective orders were passed. To illustrate on 10th October 2012, a Committee of experts was constituted to examine the questions identified in the petition and the material collected by the petitioner thereafter, as wrong and vague and submit its report. On 29th October 2012, 13 questions as against 10 questions mentioned in the earlier order were identified as wrong questions and 4 questions as against 6 questions earlier mentioned were identified as vague questions. The Committee submitted its report sometime in May 2013. The Counsel for parties were directed to be given access to the report enabling them to advance arguments against the backdrop of report. On 31st May 2013, question No.s 70,71,72,80,94 and 95 of Booklet Series -D relating to History were directed to be sent to a Committee comprising of HoD History and next senior most faculty member of the History Department, University of Kashmir. The Committee submitted its report in July. The writ petition on 5th August 2013, was declared ripe for final hearing and directed to be listed accordingly. The hearing was deferred for a while because of appearance of some of the respondents mentioned as above through their advocate Shri S.R. Hussain. However, once the respondents choose not to file their counter affidavit, the matter was again taken up for final hearing. Learned counsel for the petitioners concluded arguments and Mr. S. R. Hussain, counsel for respondents 15, 58, 59, 60, 62, 63, 64, 69, 70, 71, 77, 85, 86, 101, 106, 107, 109 and 110 addressed arguments for a while on 19th May 2014, and was to conclude arguments. He however did not conclude arguments on 19th May 2014, as Ms. Rehana counsel for applicants pointed out to pendency of their application for setting aside exparte proceedings. 10. Before we proceed to determine fate of application on hand against aforesaid factual backdrop, it will be appropriate to find out as to what applicants/respondents are required to substantiate, to make out a case for setting aside exparte proceedings. We are aware that though, the Civil Procedure Code, may not apply to the writ proceedings, yet the principles laid down in the Code are to be followed for smooth conduct of writ proceedings. We are aware that though, the Civil Procedure Code, may not apply to the writ proceedings, yet the principles laid down in the Code are to be followed for smooth conduct of writ proceedings. One of the principle laid down in the Code and relevant to present controversy is requirement to make out a "good cause", to get ex parte proceedings set aside. Lawmakers in their wisdom have not left room for setting aside exparte proceedings on mere asking of the party proceeded exparte. The party proceed exparte is required to assign, "good cause" for its previous non-appearance. It is only after a "good cause", is assigned that the court has discretion to set aside exparte proceedings upon such terms as court may direct as to costs or otherwise. True that a party to litigation proceeded exparte may join proceedings at any stage. However, in case such party wants to get relegated to the stage, it was set exparte and wants the court to retrace its steps, it is to assign a "good cause" for previous non-appearance. For, once, exparte proceedings are set aside, the proceedings from the date, party was set exparte till the date the party appearance enters are rendered inconsequential. The party gets a right to exercise his rights viz-a-viz , the litigation that would come its way, had it not been set as exparte. The burden on such party is heavier, where the exparte proceedings culminate in judgment and decree. In such an event, the party is to assign "sufficient cause" for non-appearance. Be that as it may, the applicants/respondents in the present case are required to assign a "good cause" for their non-appearance during the period stretching over little more than three years. 11. The applicants/respondents are degree holders in different disciplines and participated in selection process initiated by respondents Board to fill up available Naib Tehsildar vacancies in the State's Revenue Department. Petitioners threw challenge to the selection process on the grounds set out in the writ petition. The official respondents appeared and disclosed their stand. The selection process was therefore under challenge before the court. It sounds far from convincing that the applicants/ respondents who were interested in smooth and expeditious finalization of the selection process, did not acquire knowledge about the pendency of the writ petition. Applicants/respondents were served through registered notice, they failed to respond. The official respondents appeared and disclosed their stand. The selection process was therefore under challenge before the court. It sounds far from convincing that the applicants/ respondents who were interested in smooth and expeditious finalization of the selection process, did not acquire knowledge about the pendency of the writ petition. Applicants/respondents were served through registered notice, they failed to respond. In the meantime, selection process was concluded. Petitioners now called in question, the select list that included the present applicants. It is not believed that applicants who because of their inclusion in the select list had a visible interest in conclusion of the selection process, did not gain knowledge about the pendency of the writ petition. They are expected to have been well aware that their colleagues in the selection process were aggrieved with their selection and therefore keen to get their selection process set aside. The select list was acted upon notwithstanding pendency of the writ petition. Petitioners again approached court through medium of CMP No. 797/2009 to have appointment orders kept in abeyance. This court on 22nd December 2010, directed that the appointment made on the basis of select list would remain subject to outcome of the writ petition. 12. The above discussion apart, the applicants like other respondents were served through registered notice. Once they failed to appear, it was decided to serve respondents including applicants through substituted service. Notice was accordingly issued and published in Daily "Kashmir Times" on 04th August 2011, informing them regarding pendency of the writ petition and requiring them to cause appearance in person or through their counsel/attorney before the Registrar Judicial, High Court Wing in Srinagar, on the date mentioned in the notice. The applicants did not bother to appear and oppose the writ petition. The petition was admit to hearing and the applicants once again served through substituted service/Notice published in local daily. Notice was accordingly published on 01st March 2012, issue of "Kashmir Times". "Kashmir Times" is one of the reputed local dailies of the State and has wide circulation in the State. It is unbelievable that the applicants did not get knowledge of pendency of the writ petition against their selection `and appointment as Naib-Tehsildar, after a notice was published in aforesaid local daily, not once but before and after formal admission of petition to hearing. 13. It is unbelievable that the applicants did not get knowledge of pendency of the writ petition against their selection `and appointment as Naib-Tehsildar, after a notice was published in aforesaid local daily, not once but before and after formal admission of petition to hearing. 13. It needs to be emphasized that the applicants are gazetted service Revenue Officers with the powers of the Executive Magistrate under the Code. They are expected to go through a newspaper with vide circulation and be aware of the notice published in such newspaper. Had it been a case of illiterate, old, infirm, dis-empowered person, from an educationally and economically backward area or a forlorn village, one could proceed on assumption that such person might not have access to the newspaper. But, having regard to the status of the applicants in society, their educational background and official position, such inference would not be available. If conduct of the respondents who appeared through their counsel on 19th May 2014 and tried to convey seriousness on their part to contest the petition, is any indicator, the only purpose of moving application for setting aside exparte proceedings after a long interval is to see to it that cause agitated in the petition remains unaddressed till the petitioners loose interest in the matter and are disillusioned by the delay in disposal of the petition. 14. The Rules of Procedure, it has been stated time and again, are to be followed, in letter and spirit, so as to ensure adjudication of the cause agitated within a reasonable time frame. The Rules of Procedure are not to be taken lightly and not to be observed in breach. True that, Rules of Procedure are to advance cause of justice and not to hamper it or "trip" people up, yet the observation is not to be used as a tool to encourage disobedience of the Rules of procedure with impunity, by those who are empowered and presumed to be well aware of their rights, duties and obligations. The Rules of Procedure, this bench has previously held in one of the matters involving identical controversy, are like sign posts or milestones on a road. These map out the course a vehicle has to follow to reach its destination. The Rules of Procedure, this bench has previously held in one of the matters involving identical controversy, are like sign posts or milestones on a road. These map out the course a vehicle has to follow to reach its destination. If we take vehicle on a road as a lis and sign posts and milestones as Rules of Procedure, the lis has to follow the Rules of Procedure to reach to its disposal in accordance with law. 15. What is "good cause"? Good cause is defined as adequate or substantial ground or reason when we are called upon to decide whether party to litigation assigns "good cause" for his previous non-appearance, we are required to consider all attending circumstances. Whether there is "good cause" for non-appearance on previous date (s) depends on facts of each case. There is no scope for laying down a general principle to cover all the cases irrespective of their individual facts. The court while exercising discretion is to take into account all the attending facts and circumstances. What may be "good cause" for one litigant may not be so for other litigant, having regard to the circumstances in which he is placed. Court is to have regard to status of the applicant and his accessibility to the media through which he is informed about pendency of a lis and requirement of his appearance like educational background and position he holds in the society. 16. In the present case, applicants are graduates and first class gazetted officers. They hold quasi-judicial position. They are presumed to be well aware of law and expected to have access to the leading newspapers published from the State. The attending circumstances indicate that they must have been aware of the pendency of the petition from the day first inasmuch as it was non else but participants in the selection process in which applicants also participated and found place in the selected list who were parties to the petition. 17. In the circumstances, case set up by applicants through their colleague (i.e Shri Kaiser Ahmad Zargar respondents No. 14), working in the Office of Financial Commissioner (Revenue),- the only amongst the applicants to swear affidavit in support of the application that is taken into indicate circumstances in which he alone was placed, does not inspire confidence. 17. In the circumstances, case set up by applicants through their colleague (i.e Shri Kaiser Ahmad Zargar respondents No. 14), working in the Office of Financial Commissioner (Revenue),- the only amongst the applicants to swear affidavit in support of the application that is taken into indicate circumstances in which he alone was placed, does not inspire confidence. I am satisfied that the applicants have not been able to assign a "good cause" for their non-appearance on consecutive hearings during more than three years till the motion for setting aside exparte proceedings. 18. So viewed, the application is held to be meritless and accordingly dismissed. This is not to stand in the way of the applicants to participate in the proceedings onwards and address arguments after Mr. S. R Hussain, concludes his arguments. 19. List main petition on 25.8.2014.