Srinagar, July 27: The High Court Tuesday directed the Principal Secretary Home Department and DGP State Disaster Response Force (SDRF) and Auxiliary Police to appear before it on August 12 to explain as to why contempt proceedings be not initiated against them for non-implementation of a judgment passed in 2009.
Hearing a contempt plea by 85 petitioners, a bench of Justice Ali Muhammad Magrey however said in the event compliance was submitted before the court by August 12 the Officers need not to appear.
After hearing the parties, the court observed that the judgment passed by the single bench way back on 1st December 2009 in a writ petition of 1999 had remained unimplemented despite assurances and undertakings extended by the government from time to time.
Understanding that the authorities in government on one pretext or the other are delaying implementation of the judgment as no effective steps have been taken by them to ensure implementation of the same, the court said there was no other option for it but to seek personal appearance of the officers concerned.
In its judgment dated 1st December, 2009 passed in SWP No 211/1999, the court had said that the “Rule 5-AA” referred to squarely applied to the consolidated pay employees the way it applied to the daily-rated workers. “Therefore, 50 percent 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 March 1973 has to be changed,” the court said.
“While fixing pay for grant of in-situ promotion, 50 percent of continuous service which as the petitioners have spent on consolidated basis should be counted with regular service and accordingly first, second, and third higher standard pay scale as should be warranted under such fixation should be allowed,” the judgment said.
In its order dated 3rd February 2020 on the contempt plea, the court had sought compliance of the judgment with respect to present petitioners while rejecting ground projected by the government that the contempt petition was not maintainable as petitioners in it were not the petitioners in the writ petition as “unsustainable”.
The court had rejected the contention of the government after summoning the writ court records which revealed that in writ petition the petitioners had submitted that they belong to the Auxiliary Police Force and were 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.
The court today observed that the officers concerned were granted time to submit the compliance of the judgment dated 1st December 2009 till 24 February 2020, for which time, on request of their counsel was further extended on 10 August, 28 August, 20 November, 25 November, 9 December, and 28 December 2020.
“Today, when the matter was taken up for consideration, it transpired that the needful, till date, has not been done by the respondents (officers) despite availing umpteen opportunities,” the court said.
The court said when Senior AAG B A Dar was asked about the implementation of the judgment, he invited its attention to the status report filed by him on behalf of the officers concerned on 22 March this year in relation to the order of the court dated 25 November 2020.
The report said 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, the report said, was conveyed to the Commandant General, Home Guard, CD and SDRF J&K for taking further appropriate action in the matter, who in terms of his communication dated 20 November 2017 intimated that the directorate issued instructions for implementation of the direction of the High Court in respect of the petitioners.
On the basis of the factual details of the case and the record available in the Home Department, the report said, the claim of 185 persons mentioned in the Home Guard communication dated 20 November 2017 including 85 applicants of contempt petition was not found legally admissible and accordingly rejected by the government vide an order dated 10 May 2019.
The report said the fact that benefit has already been accorded to the 74 employees other than the five 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 issue so that an informed decision can be taken in the matter.
After hearing the parties and perusing the report, the court said: “Having heard the learned counsel for the parties and after going through the pleadings on record, what emerges is that the judgment passed by the Writ Court way back on 1st December 2009 has remained unimplemented despite assurances and undertakings extended by the respondents before the Court from time to time.”