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2019 DIGILAW 479 (JK)

Nand Kishore Singh v. B. R. Sharma

2019-11-02

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. 1. Present contempt petition is filed for initiation of contempt proceedings against respondents for non-compliance and disobedience of judgement dated 6th of August, 2010 passed in SWP no. 802/2008 titled Nand Kumar Singh Vs. State of J&K and others on the grounds taken therein. 2. A writ petition, being SWP No. 802.2008 titled Nand Kumar Singh v. State of J&K and others, having been filed by the petitioner, was disposed of vide judgement dated 6th of August, 2008. The operative portion thereof is pertinent to be reproduced hereunder: “In view of the stand taken by the learned counsel for the respondents which is acceptable to the learned counsel for the petitioner and submission made, this petition is disposed of with the direction to the respondents to consider the claim of the petitioner in terms of the judgment passed in SWP No. 1234/2K titled Parhlad Singh and others V. State and others decided on 30.11.2002 and if found similar and covered by the rules consider grant of same benefit to him. Let a decision be taken by the respondents in accordance with the rules within a period of three months from the date copy of this order is served upon them by the petitioner.” 3. Learned counsel for the petitioner contends that the petitioner served a copy of the judgment and order to the respondent through registered AD vide covering letter reference No. 911-13/OP dated 17.09.2010. It is also contended that the case of the petitioner was processed, but, the final order has not been passed. The petitioner through his counsel also sent another reminder dated 29.10.2011 requesting them to implement the judgment and order dated 06.08.2008. 4. Non-implementation of judgement dated 6th August, 2010, forced petitioner to file the instant contempt petition. 5. The respondents have filed statement of facts and considered the claim of the petitioner in compliance to the judgment dated 6th August, 2010 and passed a consideration order, i.e., Govt. Order No. 1775-Home of 2017 dated 14.12.2017 whereby the case of the petitioner has been considered for regularization under the provisions of Jammu and Kashmir Civil Services (Special Provision) Act, 2010 and found not covered by the Rules and rejected the same. Order No. 1775-Home of 2017 dated 14.12.2017 whereby the case of the petitioner has been considered for regularization under the provisions of Jammu and Kashmir Civil Services (Special Provision) Act, 2010 and found not covered by the Rules and rejected the same. However, this Court vide order dated 19.03.2019 being not satisfied with the compliance order has observed that the order of consideration passed by the respondents dated 14th December, 2017 does not comply with the judgment passed by this Court. The case of petitioner was required to be considered on the analogy on which cases of Mohd Khan, Sabil Singh, Kewal Krishan, Parhlad Singh and Shamsher Singh have been considered and not under the provisions of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, to which time was granted to the respondents to come up with response to the supplementary affidavit filed by the petitioner and also to clarify the issue as to why the case of the petitioner has not been considered on the analogy of the aforesaid persons. 6. Respondents have filed response in terms of the orders dated 31.10.2018 and 19.03.2019 contending therein that the matter was examined in light of the advice of the Finance Department/General Administration Department and the relevant recruitment rules governing the subject and it is observed that in terms of the Jammu and Kashmir Jails (Subordinate) Service Recruitment Rules, 1985 notified vide SRO 304 dated 17.08.1985, the post of Warder is to be filled up 100% by direct recruitment and there is no mention in these rules that the post of warder is reserved for ex-serviceman. 7. I have heard learned counsel for parties at length and considered the matter. 8. Instant motion is for initiation of contempt proceedings against respondents for non-implementation and disobedience of judgement dated 6th August, 2010 passed in SWP no. 802/2008 titled Nand Kumar Singh Vs State of J&K and others. 9. Respondents, in their response, have given the whole picture of subject-matter of writ petition, including steps taken by them as to implementation of judgement dated 6th August, 2019 passed in SWP no. 802/2008 titled Nand Kumar Singh v. State of J&K and others. 10. 802/2008 titled Nand Kumar Singh Vs State of J&K and others. 9. Respondents, in their response, have given the whole picture of subject-matter of writ petition, including steps taken by them as to implementation of judgement dated 6th August, 2019 passed in SWP no. 802/2008 titled Nand Kumar Singh v. State of J&K and others. 10. From the response, so filed by respondents, it comes to fore that in compliance of writ court order dated 06.08.2010 passed in SWP No. 802/2008, the case of petitioner was considered in terms of the provisions of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 read with relevant SROs governing the subject on the ground that every case of regularization is required to be considered in terms of the aforesaid Act. Respondents have contended that the case of Parhlad Singh (supra), as referred to in the writ court order dated 06.08.2010 is distinguishable from the case of the petitioner for the reason that on the date of his regularization viz. 14.12.2002, the aforesaid legislation was not on the statute book. This Court had directed to consider the claim of the petitioner in terms of the judgment passed in SWP No. 1234/2000 titled Parhlad Singh and others V. State and others decided on 30.11.2002 and if found similar and covered by the rules consider grant of same benefit to him and the respondents have considered the same under the provisions of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 and found not eligible, rejected the same. As regards the contention of the petitioner that the post of Warder is a civil post and the same is governed by the Civil Services Regulations, 1956, the matter was examined in light of the advice(s) of the Finance Department/General Administration and the relevant recruitment rules governing the subject wherein it was observed that in terms of the Jammu and Kashmir jails (Subordinate) Service Recruitment Rules, 1985 notified vide SRO 304 dated 17.08.1985, the post of Warder is to be filled up 100% by direct recruitment and there is no mention in these rules that the post of Warder is reserved for ex-serviceman. Moreso, in the present case, there is requirement of age relaxation. Moreso, in the present case, there is requirement of age relaxation. The relaxed aged limit will apply for recruitment to the posts, which are reserved for ex-serviceman and in the rules under which the case of the petitioner has been considered, there is no mention that the post of Warder is reserved for ex-serviceman. 11. The judgments cited by the learned counsel for the petitioner, viz. 2013(10) SCC 308 , 2006 AIR (SC) 2628, 2006 AIR (SC) 3335, 1991 AIR (SC) 2234, 2009 (15) SCC 505 , , 1996(2) ICC 179, 1997(2) GauLJ 69 , 1957 AIR (A.P.) 965, and 1960 AIR (Punjab) 209 are distinguishable on facts, therefore, the same are not applicable in the instant case. So far as the judgment relied upon by the learned counsel for the respondents, i.e. Shri N.K. Janu v. Lakshmi Chandra passed in Civil Appeal No. 3740 of 2019 on 10.04.2019 is concerned the same weigh with the arguments advanced by the learned counsel. In the said judgment, the Hon’ble Supreme Court has observed that Contempt Court is to ensure that order of the Court is complied with and once the order has been passed in compliance to the order passed by the Court, it is open to the aggrieved person(s) to challenge the said order by way of writ petition. 12. In the present case, the direction was to consider the claim of the petitioner in terms of the judgment passed in SWP No. 1234/2000 titled Parhlad Singh and others v. State and others decided on 30.11.2002 and if found similar and covered by the rules consider grant of same benefit to him. It appears that the respondents have considered the same in terms of the aforesaid judgment and the rules occupying the field and found that the case of the petitioner is not similar to the aforesaid judgment. It is made clear that the Court in contempt jurisdiction has to consider only whether the direction or judgment of the Court passed in regular proceedings has been complied with or not. Since the respondents have considered the case of the petitioner in terms of the directions issued by this Court, therefore, the only remedy available to the petitioner is to file writ petition against the said consideration order. This Court cannot go beyond the directions contained in the order; disobedience whereof is complained. 13. Since the respondents have considered the case of the petitioner in terms of the directions issued by this Court, therefore, the only remedy available to the petitioner is to file writ petition against the said consideration order. This Court cannot go beyond the directions contained in the order; disobedience whereof is complained. 13. For the foregoing reasons, the contempt petition is closed. Rule, if any issued, is hereby discharged. However, the petitioner is at liberty to challenge the consideration order if he so advised.