HC seeks personal appearance of Home Secy, DGP SDRF for not complying 11 years old judgment

27/07/2021

JAMMU, Jul 26: The Jammu & Kashmir and Ladakh High Court came to rescue of employee who wait for compliance of judgment passed in the year 2009, seeks personal appea-rance of Principal Secretary to Govern-ment of the Union Territory of Jammu and Kashmir, Home Department and DGP, State Disaster Response Force (SDRF)/ Auxiliary Police, Jammu/ Srinagar on August 12, 2021 so as to explain as to why contempt proceedings be not initiated against them for non-implementation of the judgment passed by the Court in the year 2009..
The significant order has been passed by Justice Ali Mohammad Magrey in a Contempt Petition filed by 85 Petitioners alleging violation of Judgment dated 1st of December, 2009 passed by the Writ Court.
While seeking personal appearance of these two higher officials, Justice Ali Mohammad Magrey observed that By Order dated 3rd of February, 2020, this Court observed that "The instant contempt petition is filed by 85 petitioners who allege violation of judgment dated 1st of December, 2009 passed in SWP No. 211/1999, operative paragraphs whereof read as Rule 5-AA referred to above squarely applies to the consolidated pay employees the way it applies to the daily rated workers. Therefore, 50% of continuous work as consolidated wage service has to be counted with regular service for the purpose of grant of in-situ promotion. The fixation, therefore, has to be made afresh because the earlier fixation made in the year 1995, where-under service of the petitioners has been reckoned with effect from 30.3.1973, has to be changed.
While fixing pay for grant of in-situ promotion, 50% of continuous service which as the petitioners have spent on consolidated basis shall be counted with regular service and accordingly first, second and third higher standard pay scale as shall be warranted under such fixation shall be allowed. The excess amount as a result of earlier fixation if found to have been drawn on re-fixation on aforesaid terms shall be adjusted.
Petition accordingly succeeds. Communication Nos. Home/HG/16/98 dated 1.1.1999 and EXIT \V1> Pay 43-45 99 dated 6.1.1999 shall be treated as non-est."
Justice Ali Mohammad Magrey after hearing both the sides and perused the pleadings on record and considered the matter observed that during the course of hearing the arguments, a need was felt by this Court to summon the Writ Court records. Perusal of the Writ Court records reveals that in paragraph No.3 of the Writ petition, the petitioners had submitted that they belong to the Auxiliary Police Force and are filing the Writ petition for securing and protecting the interests of the members of the Auxiliary Police Force, holding the post of Constables numbering 186. It is also forthcoming from the Writ Court records that the petitioners had also given the details of all the 186 employees seeking the benefit and had placed the same on record alongside the writ petition as Annexure-"A". Even though the respondents rebutted the said contention of the petitioners in their reply filed before the Writ Court, but no finding was returned by the Writ Court on the said issue of common cause and, instead, the impugned communications were set aside as a whole and not to the effect of the petitioners in the Writ petition only. It being so, the relief granted by the Writ Court cannot be said to be with regard to the five petitioners in the Writ petition only, but same has to be applied to the case of all the employees of the then Auxiliary Police Force whose names figured in the list of employees placed on record alongside the writ petition as Annexure-"A", including the petitioners herein. Furthermore, the contention of the learned senior counsel representing the petitioners that out of 186 members of the Auxiliary Police Force, figuring in the Annexure- "A" of the writ petition, more than 80 employees have already got the benefit of the judgment of this Court to the exclusion of the petitioners, has also remained unrebutted by the other side.
Justice Magrey observed that the objection of the respondents that the instant contempt petition is not maintainable on the ground that the petitioners in the present contempt petition were not the petitioners is unsustainable and, as such, rejected and ordered that the respondents file compliance of judgment dated 1st of December, 2009 passed in SWP No. 211/1999 qua the present petitioners by or before the next date of hearing, failing which appropriate orders shall follow on the next date of hearing.
The Respondents were, thus granted time to submit the compliance of the judgment dated 1st of December, 2009 till 24th of February, 2020, which time, on request of the counsel for the Respondents, was further extended on 10th of August, 2020; 28th of August, 2020; 20th of November, 2020; 25th of November, 2020; 9th of December, 2020; and 28th of December, 2020.
Justice Magrey observed that today, when the matter was taken up for consideration, it transpired that the needful, till date, has not been done by the Respondents despite availing umpteen opportunities.
When the Court asked, Mr B. A. Dar, the Senior Additional Advocate General, invited the attention of the Court to the Status Report filed by him on behalf of the Respondents on 22nd of March, 2021 in relation to Order of this Court dated 25th of November, 2020, wherein at Paragraph Nos. 3 to 5, it has been stated that it is respectfully submitted by the answering respondents that in due compliance of the judgment the matter was taken up with the Department of Law, Justice and Parliamentary Affairs and Finance Department. The opinion of the Finance Department was conveyed to the Commandant General, Home Guard/CD and SDRF J&K for taking further appropriate action in the matter. The Commandant General, Home Guard/ CD and SDRF J&K in terms of his communication dated 20-11-2017 intimated that the Directorate issued instructions for implementation of the direction of the High Court in respect of the petitioners.
It is submitted by the answering respondents on the basis of the factual details of the case and the record available in the Home Department, the claim of (185) persons mentioned in the Home Guard communication dated 20-11-2017 including (85) applicants of contempt petition was not found legally admissible and accordingly rejected by Government vide order No. 498 of 2019 dated 10.05.2019. It is further submitted by the answering respondents that the fact that benefit has already been accorded to the 74 employees other than the 05 petitioners is being ascertained from the Commandant General, Home Guard as the Home Department is required to examine all the details with regard to the said issue so that an informed decision can be taken in the matter. It is further submitted that because of the disruption of the offices due to COVID-19 processing of the matter could not be taken place expeditiously. That on receipt of all the requisite details, the matter will be further examined in the Home Department in consultation with the Law Department."
Justice Ali Mohammad Magrey observed that after going through the pleadings on record, what emerges is that the judgment passed by the Writ Court way back on 1st of December, 2009 has remained unimplemented despite assurances and undertakings extended by the Respondents before the Court from time to time. The Respondents, on one pretext or the other, are delaying implementation of the judgment aforesaid inasmuch as no effective steps have been taken by them to ensure implementation of the judgment passed by the Court.
Court further observed that in the above background, there is no other option for the Court, but to seek personal appearance of the officer(s) concerned. Accordingly, -Principal Secretary to Government of the Union Territory of Jammu and Kashmir, Home Department; and DGP, State Disaster Response Force (SDRF)/ Auxiliary Police, Jammu/ Srinagar, appear before the Court on the next date of hearing so as to explain as to why contempt proceedings be not initiated against them for non-implementation of the judgment passed by the Court in the year 2009.

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