Sharief-ud-Din vs Harbans Singh, Dr.

O.P. Sharma, J.—This contempt petition seeking implementation of the judgment of this court in writ petition no. 1226/85, decided by the

Single Bench on 26.5.1988, is the fourth in succession and arises in the facts and circumstances a resume of which is as follows:

Since the petitioner has placed reliance on different court orders to make out a case for initiating these proceedings, a reference to each one of

these court orders becomes inevitable. First of all, the judgment in Writ Petition No. 1226/85 dated 26.5.1988 which is sought to be implemented,

may be analysed. Its operative portion reads:

Accordingly, it is directed by a writ of mandamus that the petitioners be treated as employees of the respondent No. 1. and allow them to hold

those posts which they held prior to passing of order No. 420Agri of 1981 dated 25.7.1981 and prior to the order No:85Agri of 1982 dated

28.1.1982.

It is also directed that the seniority of the petitioners should be maintained as employees of the Government Agriculture College, Sopore and they

be relieved from the Agriculture Department for being posted at appropriate places with the respondent No.1

The direction is thus threefold: (i) the petitioners be treated employees of the SheriKashmir University of Agriculture Sciences and Technology (for

short, SKUAST); (ii) they were to hold the same posts which they were holding at the time order no. 420Agri of 1981 dated 25.07.1981 and

Order No: 85Agri of 1982 dated 28.1.1982, were issued; and (iii) the seniority position of the petitioners as employees of the Govt. Agriculture

College, Sopore, was to be maintained notwithstanding their absorption in the SKUAST.

The implementation of this judgment is, thus, at the centre of the controversy in these proceedings. In Contempt Petition No. 229/88 this Court

vide order dated 27.1.1989 directed implementation of the judgment by 30.1.1989 when LPA No. 44 of 1988 challenging the judgment was

pending disposal. Nothing is mentioned about the final outcome of this petition though the direction does not appear to have been implemented.

Meanwhile Contempt Petition No. 256/91 was filed about which a reference is made in the judgment of the Division Bench dated 6.5.1996 by

virtue of which LPA No. 44/88 was decided holding that

A copy of the order dated 1.3.1994 issued by the Registrar, S.K.University of Agriculture Sciences and Technology, Shalimar Campus, Srinagar,

is produced by the learned counsel for the respondents. We have perused the same. In view of the benefits arising out of the said order to

respondents 5 to 13 their grievance have come to an end. In so far as Mr. Janki Nath Kakroo respondent NO. 12 is concerned, learned counsel

for the respondents submits that he having been retired earlier to the aforesaid order (dated 1.3.1994) the consideration for his grievance would

not arise. In view of the foregoing, this appeal stands disposed of. Consequently Contempt proceedings in Contempt Petition No. 256 of 1991

shall stand dropped.

So the proceedings in Contempt Petition No. 256/91 came to be dropped which indicated that Contempt Petition No. 229/88 had already been

decided. Subsequently another Contempt Petition No. 279/96 was filed by the petitioners in which one of us (Parray J.) vide order dated

12.2.1997 directed the respondents to make payment of the arrears which have accrued to the petitioners in terms of order No. 78/Estt. of 1994

dated 1.3.1994, issued by the SKUAST. However, this direction appears to have been challenged by the University in L.P.A. which was decided

on 22.4.1997 with the following observations:

We are of the view that the University was bound to decide the claim of the petitioner with regard to the benefits as has been mentioned in para 4

of the order dated 1.3.1994.

In these circumstances we direct the University to take a decision with regard to the claim of the petitioner for giving benefits to the respondent

No.1 in the first instance within a period of one month. With these observations this appeal is disposed of. In view of this order it will serve no

purpose if the contempt proceedings are allowed to continue. They are also dropped but respondent No. 1 has liberty to seek appropriate remedy

if the University passed an order adverse to his interests.

In compliance to this direction, the SKUAST passed a fresh order dated 20.05.1997 holding that the petitioner has already got much more than

what was due to him. This order, according to the petitioner, violates the directions to the Division Bench dated 22.4.1997 and consequently the

judgment dated 26.05.1998. He, therefore, seeks implementation of the judgment of the Single Bench dated 26.05.1998 and that of the Division

Bench dated 22.04.1997

Mr. Qayoom, learned counsel appearing for the petitioner, argued that there has been a systematic attempt to withal down the import of the

judgment of this Court in Writ Petition No. 226/88 and the subsequent directions for its implementation. Even though the order passed by the

SKUAST dated 1.03.1994 grants financial benefits to the petitioner, but, these were denied by issuing order dated 23.04.1994 and that too after

having given an assurance in the Court to that effect. According to him the only course open to the University is to draw the amount which has

already been calculated and disburse the same to the petitioner to put an end to the controversy.

Mr. Lone, learned counsel appearing for SKUAST, on the other hand, argued that earlier contempt petitions having been dropped by the

courts, this petition is not maintainable. According to him, the judgment of the learned Single Judge has only directed that seniority of the petitioner

shall be maintained in the Agriculture College, Sopore and there is nothing on record to show that he has been denied the seniority.

The short point for consideration is: whether the order dated 23.04.1994 and the memorandum dated 20.05.1997 issued by respondent No.1,

are in violation of any of the court direction.

Much stress has been laid on para 4 of the order dated 1.3.1994 which reads as under:

It is further ordered that as a consequence of the above directions of Hon'ble High Court of Jammu and Kashmir benefits that could have accrued

to the said incumbents listed in annexure 'A' in case they would have been in position in the erstwhile college of Agriculture, or which benefits their

substitutes in the college received from SKUAST, shall be admissible to them.

Obviously, it is only for seniority and not for any financial benefits. However, order dated 23.04.1994 passed by the University denies the financial

benefits even if it had accrued to any of the petitioners, as is evident from para 6 of this order which reads:

It is further ordered that while such time to time placement of the said employees as was allowed to employees who were translocated to

erstwhile College of Agriculture from department of Agriculture and hold the status corresponding to the employees to erstwhile college of

Agriculture, as listed in University Order No.78EST/1993 be limited to national accruals keeping in view the financial inviability of the University.

We are not aware of what financial benefits were available but the memorandum dated 20.05.1997 makes the position clear. The relevant portion

of this memorandum reads as follows:

Whereas in LPA No. 104107 (arising out of contempt proceedings initiated by the Hon'ble High Court at the instance of ShariefudDin) filed by

ViceChancellor and others against the direction of the Single Bench of Hon'ble High Court for making certain payments to the petitioner, the

Hon'ble Double Bench dropped the contempt proceedings with the direction that the claim of Shri Shariefuddin be decided within a period of one

month from the date of judgment. Now, therefore, in due deference (SIC) granted by the Hon'ble Double Bench of J and K High Court under

LPA No. 104107 case of Shariefuddin has been screened and claim considered on the basis of available material. It has been found that

Shariefuddin has been receiving benefits of promotion/grade and periodical increments and nothing has been found due to him from the University.

It has been further found that at the entry level into the SKUAST under the judgment of the Hon'ble Court, Shariefuddin was appointed as Head

Clerk, adjusted on the post of Security Officer, although he was only working as Jr. Assistant in the college. It has also been found that service

book of Shariefuddin is not available and it has been reported by District Agriculture Officer/Inputs. Baramulla vide No. Estt/ 8990/382829 dated

4.11.1989 that some fictitious and manipulated entries have been made in the service book by Shariefuddin himslef, besides recording other

certificates for which a separate inquiry is in contemplation."" This means the petitioner has got much more than what was due to him.

Assuming that this statement of fact is incorrect, the same cannot be determined or adjudicated in these proceedings. Whether the petitioner was

holding the post of a Junior Assistant before his adjustment in SKUAST and has got accelerated promotion thereafter on the post of Head

Assistant, as stated in the memorandum, is a question of fact to be adjudicated in appropriate proceedings, if so advised. Since, the judgment

dated 26.05.1988 only directed that his seniority be maintained and nothing has been brought on record to show how the direction has been

violated. The court has to accept the position indicated in the memorandum dated 20.05.1997.

The contempt proceedings are akin to execution proceedings. Just as the executing court cannot go behind the decree, the scope of the

contempt proceedings cannot be enlarged to determine contentious issues of seniority which can be determined only after the affected parties are

also heard. Moreover, as noticed earlier, the judgment dated 26.05.1988 only directed the petitioner's seniority in their parent department, to be

maintained, their adjustment in the SKUAST notwithstanding. But, there is nothing to indicate how this direction has been violated. It is nowhere

indicated what ranking in the hierarchy of officials was due to him on the basis of the seniority and since when the same has been denied and who

has superseded him. In case any one of his juniors has been promoted ignoring his claim, he had the right to challenge the said order in the absence

of which his claim cannot be determined. Having failed to do so, he cannot question the bona fides of the memorandum dated 20.05.1997.

This explains the order of the Division Bench dated 22.4.1997 which gave liberty to the petitioner to challenge the order of the University if the

same was found adverse to his interests, while dropping the contempt proceedings. So, if the petitioner is aggrieved of the order dated 20.05.1997

issued by the SKUAST, he is free to challenge the same in appropriate proceedings, if so advised. But, its legality or otherwise cannot be judged

in these proceedings as the direction of the Division Bench stands duly complied by the respondents by passing order dated 20.5.1997 and there is

nothing on record to indicate how the judgment dated 26.05.1998 was to be implemented and what part remains to be implemented.

So, whether the order dated 20.05.1997 is good or bad, cannot be determined in the contempt proceedings because the judgment of the

Single Bench dated 26.05.1988 did not determine the position assigned to the petitioners in Government Agriculture College, Sopore and their

subsequent placement in the University. The decision of the SKUAST dated 20.05.1997 may provide a fresh cause of action for the petitioner but

it certainly is not in violation of either the judgment of learned Single Judge dated 26.5.1988 or the directions of the Division Bench passed in LPA

No. 104/97 dated 22.4.1997. The fact that the Division Bench dropped the contempt proceedings giving liberty to the petitioner to seek

appropriate remedy, in case the order passed by the University in compliance to the direction was adverse to his interests, is sufficient to hold that

contempt petition is not maintainable. Even otherwise this Court is not in a position to direct how and in what manner the judgment dated

28.6.1988 was to be implemented and the same has not been done because it requires seniority position of all those affected examined and

determined, a fact not agitated in these proceedings. Hence the proceedings are dropped holding that the same are not maintainable.