Dismayed over defiance of its order, HC seeks presence of 3 top officers

Dismayed over the delay by the government in implementing its directions to appoint a teacher who has approached court 20 years ago, the court observed ‘justice delayed is justice denied’.
Representational Pic
Representational Pic

Miffed over defiance of its directions in a 20-year-old case, Jammu and Kashmir High Court on Wednesday directed three top officials to remain present before it on December 23 to explain why they should not be punished for contempt.   

Dismayedover the delay by the government in implementing its directions to appoint ateacher who has approached court 20 years ago, the court observed 'justicedelayed is justice denied'. 

Hearinga contempt petition of one Muhammad Amin Waza of Beeru, Budgam through hiscounsel Ulfat Yousuf, a bench of Justice Ali Muhammad Magrey directedCommissioner Secretary Education Department, Sarita Chauhan, Director, SchoolEducation Kashmir Muhammad Younis Malik and Chief Education Officer, Budgam,Fatima Bano to appear in person before the court on December 22.

Thecourt summoned the officers to explain as to why they should not be punishedfor violating the judgment it has issued on May 24, 2011 delivered in a writpetition filed by Waza in 1998. 

 Waza petitioned the court in 1998 and thecourt passed a judgment in his favour in 2011, nearly 8 years ago. The courtobserved despite a series of directions, the judgment has remainedunimplemented so far.

 The court had directed the respondents toconsider the case of Waza for appointment against any available vacancy ofteacher.

 After the judgment was not complied with bythe government, Waza filed contempt petition in 2011.

Duringthe pendency of the contempt petition after more than five years from the datewhen the judgment was passed, the government filed an appeal in 2016 against italong with the application seeking condonation of delay for filing the appealbefore the division bench. 

Thedivision bench, in terms of judgment dated July 3, 2017 rejected theapplication for condonation of delay and dismissed the appeal as barred bytime. Accordingly, the court took up the contempt petition for considerationand in terms of order dated March 28, 2016 observing that prima facie, DirectorSchool Education Kashmir and CEO Budgam had violated the judgment. 

Meanwhile,the Court had directed its Registry to frame rule against the two authoritiesand ask them to show cause as to why they should not be punished for violatingits judgment. In this way the Registry had framed  Robkar against the director and the CEO.

Today,when the matter came up for consideration counsels for the parties argued as towhether consideration in the contempt proceedings could be deferred in view ofpendency of appeal before the Apex Court in which only notice has been issued.

 "I am of the considered view that merepreferring of an appeal does not operate as stay on the judgment/ orderappealed against,"  Justice Magreyobserved.  

"Ordinarily,the principal consideration which prevails with the appellate Court is that inspite of the appeal having been entertained for hearing by the appellate Court,the appellant may not be deprived of the fruits of his success in the event ofthe appeal being allowed," the court observed. "Why should a party havingsucceeded from the Court below be deprived of the fruits of the decree or orderin his hands merely because the defeated party has chosen to invoke the jurisdictionof a superior forum".  

Underscoringthat the power to grant stay is discretionary and flows from the jurisdictionconferred on an appellate Court which is equitable in nature, the court said:"To secure an order of stay merely by preferring an appeal is not a statutoryright conferred on the appellant."   

Withregard to the present case, the court said in absence of any stay of thejudgment before the Supreme Court, it was unable to stop its hands fromproceeding ahead with the contempt petition.

"Itbeing so, let the Officers, against whom Robkar has been issued be present incourt on next date of hearing," the court said and directed its Registry tosend a copy of its order to the three officers forthwith.

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