STATE Vs. VINOD KUMAR VERMA

JUDGEMENT

(1.) The respon dents/writ petitioners earned a judgment in their favour on 14-11-2007 passed in SWP No. 1528/2001 to the effect that their case shall be accorded consideration in the light of the judgment dated 14-10-2004 rendered by Division Bench of this Court in SWP No. 2191/2002 connected with LPA Nos. 73/2003 & 210/2003 entitled Ashok Kumar Raina v. State of J. & K. and others. The consideration was to be accorded within a stipulated period of two months. When for a considerable long period the needful was not done, the respondents/writ petitioners were constrained to file contempt petition (Contempt (SWP) No. 112/2009), in which, after issuance of notice, statement of facts (compliance report) was filed. The learned single Judge did not find the compliance report in consonance with the directions issued by the learned Writ Court and vide order dated 20-05-2010 directed the contemnors to file better affidavit/compliance report indicating the steps taken by them in implementing the judgment by showing names of the respondents/writ petitioners in the seniority list of Junior Engineer (Civil), as also in all subsequent seniority lists, over and above the persons who are junior to them. Aggrieved of the said order, initially one Sh. B. A. Dhar, Commissioner/Secretary to Government, Power Development Department, J. "& K. Civil Secretariat, Srinagar, who was not party/respondent to the contempt petition, filed APLPA No. 22/2010 seeking permission to file appeal. However, the said application was dismissed by the Division Bench of this Court on 18-10-2010 observing that aforesaid Mr. Dhar could not be treated as a 'person aggrieved' and that it was the State Government whose action was found by the Contempt Court not in compliance to the directions of the Writ Court. Since the said application was filed with some delay, the application for condonation of delay also stood dismissed. It is how the instant letters patent appeal is filed before us by the State through Commissioner/Secretary to Government, Power Development Department.

(2.) On a specific query put to Mr. Basotra at the very outset, as to how the present appeal is maintainable against the impugned order vide which the learned single Judge has simply directed the respondent/contemnors to file better affidavit/compliance report making their stand clear in tune with the judgment passed by the learned Writ Court, he submits that the impugned order virtually decides the contempt petition as the compliance report already submitted by the respon-dents/contemnors has not found to be in consonance with the directions issued by the learned Writ Court and, therefore, the said order attains finality. He then submits that even otherwise when leave to appeal was sought by Sh. B. A. Dhar, Commissioner/ Secretary to Government, PDD, while dismissing his application, the Division Bench of the co-ordinate jurisdiction considering Mr. Dhar as not a person aggrieved, observed vide order dated 18-10-2010 that the option to question the order rests with the State and its officer who issued the order in this behalf. Acccording to Mr. Basotra, the said appeal was not filed by the State Government or the Commissioner concerned and for that reason the leave to appeal was declined. According to Mr. Basotra, order passed by the co-ordinate Bench, in fact, has granted the State a right to file letters patent appeal through its Commissioner/Secretary, therefore, the present appeal is maintainable.

(3.) According to Mr. Basotra, the order passed by the learned single Judge otherwise amounts to deviation from the original judgment, which direction can be passed in the proceedings under Article 226 of the Constitution only and not in contempt proceedings. The learned single Judge has gone be- yond the original judgment and such like order would fall within the Clause (12) of J. & K. Letters Patent. If the present case is considered from that angle, the appeal at hand will be maintainable.