Javeed Chowdhary @APPELLANT@Hash B. V. R. Subramanyam And Others

The petitioner alleges violation of judgment/ final order passed by the Division Bench on 28th February, 2019, in LPASW no. 208/2017 titled Javeed Chowdhuary v. State of J&K and others, in terms whereof this Court after allowing the appeal filed by the petitioner/ appellant has set-aside the judgment of the Writ Court dated 27th October, 2017, passed in a writ petition, SWP no. 894/2017 and consequently, the said writ petition has been allowed and the Cabinet Decision No. 50/04/2017 dated 28th April, 2017, and Government Order No. 252-HME of 2017 dated 8th May, 2017, impugned in the writ petition were quashed with the direction to the respondent to place the whole material, consisting of minutes of the decision of the Establishment-cum-Selection Committee along with Annexure A&B, before the Cabinet/ State Administrative Council (SAC), as the case may be, for its reconsideration. The Cabinet/ SAC was required to take decision in light of the observations made in the judgment within a period of four weeks from the date certified copy of the order was made available to the respondents. In terms of the judgment the Government was directed to make the incharge or temporary arrangement to run the day to day affairs of the office of the Principal, Government Medical College, Srinagar, till the decision is taken by the SAC for regular appointment of Principal, Government Medical College, Srinagar.

The said judgment/ final order is alleged to have been violated by the respondents, therefore the instant contempt petition.

This court, upon consideration of the matter, in the first instance, in terms of order dated 23rd April, 2019, out of three arrayed respondents, asked the respondent no. 2, Principal Secretary to the Government, Health and Medical Education Department, to file an affidavit, indicating therein the steps taken for the implementation of the Judgment dated 28th February, 2019.

The affidavit filed by the Principal Secretary to the Government, Health and Medical Education Department, was considered by this Court in terms of order dated 30th April, 2019, whereunder, it had been stated that the respondents are in the process of implementation of the judgment qua the reconsideration of the matter for regular appointment of the Principal, Government Medical College, Srinagar. However, nothing has been stated by the Principal Secretary to the Government, Health and Medical Education Department, as to under whose Authority/ Orders the respondent no. 3, whose appointment was quashed, is continuing.

Mr Shah Aamir, learned appearing counsel for the Principal Secretary to the Government, Health and Medical Education Department, was on 30.04.2019, pointedly asked under which authority the present Principal is continuing? The learned counsel had submitted that the Principal Secretary to the Government Health and Medical Education Department has submitted the case to the General Administration Department for implementation of the directions and the file is lying with the GAD.

Mr Javed Iqbal, learned Sr. AAG, who represents the General Administration Department was asked to have the question answered from the Chief Secretary or the Commissioner Secretary to the Government, General Administration Department, as regards the process of implementation of the judgment for making regular appointment against the post of Principal, Government Medical College, Srinagar, where the present incumbent is continuing without any authority as her appointment as such has been quashed by the Court.

Today, Mr Javed Iqbal, learned Sr. AAG, placed on record the copy of the communication addressed to him by the Deputy Secretary to the Government, General Administration Department, perusal whereof reveals that the matter for regular appointment of the Principal is under consideration of the Government and because of Darbar Move and the engagement of the officers with the Election related matters, the meeting of the Selection cum Establishment Committee could not be convened after 8th March, 2019. It is further noticed from the communication that the Government is in the process of complying the judgment within two weeks positively. Regarding the continuation of the Principal, it is stated that the Principal, GMC, is continuing as an interim arrangement on the orders of Health and Medical Education Department purely in the interest of patient care and the arrangement will be reviewed on 6th-7th May and decision taken accordingly.

We have heard learned counsel for the parties and considered the submissions made.

No explanation is submitted by respondent no. 3 regarding her continuation as Principal, Government Medical College, Srinagar, despite quashment of the appointment order, from 28th February, 2019. The respondents cannot even plead ignorance of the directions passed as all of them have been regularly represented by their counsels, therefore, the disobedience is with knowledge right from 28th February, 2019, and not vice versa. The knowledge of the respondents is further corroborated by the fact that the judgment of the court, of which the violation is alleged, has been served upon respondents with promptitude after its pronouncement. There is an affidavit of the petitioner also to that effect on record stating that the respondents have been served with the copy of the judgment on 9th March, 2019.

Even after the proper service of the judgment, the respondent no. 3 is continuing as Principal, Government Medical College, Srinagar, which does not only reflect of her disobedience towards the court orders but also shows her ignorance to the procedural laws and Rules, for, she is continuing on the post of Principal, Government Medical College, Srinagar, without any orders, as the one which was issued in her favour has been quashed. Therefore, prima facie it is apparent that the respondent no. 3 is holding the post with absolutely no legal or justifiable authority. The respondents do not deny that respondent no. 3 is continuing on the post. Otherwise also, there are communications and orders placed on record that would show that respondent no. 3 is continuing on the post. This court, while considering a Miscellaneous Petition no. 22/2019 dated 25th April, 2019, filed by Mr B. A. Dar, learned Sr. AAG, in the Public Interest Litigation No. 159/2002, on behalf of respondent no. 3 seeking direction in the name of Secretary, Lakes and Waterways Development Authority, for grant of permission for reconstruction/ extension/ renovation of PHC Hazratbal Now Sub-District Hospital (SDH) Hazratbal, Srinagar. The Miscellaneous Petition is supported by the affidavit filed by respondent no. 3 and bears her signatures.

Needless to mention that the prestige, honour and dignity of the court is supreme and nobody, irrespective of the stature, would be allowed to play with the honour or dignity of the court orders. The contempt jurisdiction is a special jurisdiction which has to be exercised sparingly, whenever an act affects the administration of justice or which tends to impede its course or tends to shake the public confidence in the judicial institutions.

It is not only the power but the duty of the court to uphold and maintain the dignity of the courts and majesty of law which may call for such extreme steps. If for proper administration of justice and to ensure due compliance with the orders passed by the courts, it is required to take strict view under the Act it should not hesitate in wielding the potent weapon of contempt.

We are Prima facie convinced with the stand taken by the respondents for making regular appointment against the post in question but we reflect our serious concern regarding the non-implementation of the part of the judgment which provided for making interim arrangement for running the day to day affairs of the College.

The stand now taken by the GAD that the respondent no. 3 is working as Principal as an interim arrangement is belied by the approach adopted by the respondents as they could not produce any order to support such view. Needless to mention that previously also Mr Shah Aamir, learned AAG, representing the Health and Medical Education Department, was pointedly asked to substantiate the interim arrangement of the respondent no. 3 with reference to any Government Order having been issued in this behalf, but the counsel could not produce any and submitted that the case is lying with the GAD. Today the communication placed on record by Mr Javed Iqbal, learned Sr. AAG, reflects that the interim arrangement is made by the Health and Medical Education Department, therefore, the contradictory stand of the respondents makes us to believe that there, in fact, is no Government order issued to that effect.

For all what has been said hereinbefore, we pass the following directions:-Respondents 1 and 2 shall ensure implementation of the judgment within two weeks from today. They shall also ensure making the interim arrangement as directed by the Court by or before the next date.

The respondent no. 3 shall stop functioning as Principal, Government College, Srinagar, from today in compliance to the judgment passed by this Court.

Registrar Judicial, Srinagar, shall ensure implementation of the order by 4.00 pm today and report compliance. The matter be listed again at 4.00 pm. Learned Registrar Judicial shall associate the Inspector General of Police to facilitate compliance in the event any difficulty is faced by her in ensuring compliance of the directions.

Respondents 1 and 2 shall ensure interim arrangement in the meanwhile by or before the next date and till such time respondent no. 2 shall ensure smooth and proper functioning of the College and the Associated Hospitals. It shall be the responsibility of the Principal Secretary to the Government, Health and Medical Education Department to ensure that the patient care does not suffer till the interim arrangement is made.

Registrar Judicial shall convey the order to the Chief Secretary of the State by today as also to the respondents, copy whereof shall be furnished to the appearing counsels for respondents for compliance.

MP no. 22/2019 which was tagged with the records of this file is detached and be listed separately, however, a Xerox copy of the application and the affidavit be kept with the instant petition.