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

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.   

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’. 

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

The court summoned the officers to explain as to why they should not be punished for violating the judgment it has issued on May 24, 2011 delivered in a writ petition filed by Waza in 1998. 

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

 The court had directed the respondents to consider the case of Waza for appointment against any available vacancy of teacher.

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

During the pendency of the contempt petition after more than five years from the date when the judgment was passed, the government filed an appeal in 2016 against it along with the application seeking condonation of delay for filing the appeal before the division bench. 

The division bench, in terms of judgment dated July 3, 2017 rejected the application for condonation of delay and dismissed the appeal as barred by time. Accordingly, the court took up the contempt petition for consideration and in terms of order dated March 28, 2016 observing that prima facie, Director School Education Kashmir and CEO Budgam had violated the judgment. 

Meanwhile, the Court had directed its Registry to frame rule against the two authorities and ask them to show cause as to why they should not be punished for violating its 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 to whether consideration in the contempt proceedings could be deferred in view of pendency of appeal before the Apex Court in which only notice has been issued.

 “I am of the considered view that mere preferring of an appeal does not operate as stay on the judgment/ order appealed against,”  Justice Magrey observed.  

“Ordinarily, the principal consideration which prevails with the appellate Court is that in spite 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 of the appeal being allowed,” the court observed. “Why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum”.  

Underscoring that the power to grant stay is discretionary and flows from the jurisdiction conferred 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 statutory right conferred on the appellant.”   

With regard to the present case, the court said in absence of any stay of the judgment before the Supreme Court, it was unable to stop its hands from proceeding ahead with the contempt petition.

“It being so, let the Officers, against whom Robkar has been issued be present in court on next date of hearing,” the court said and directed its Registry to send a copy of its order to the three officers forthwith.