SrinagarThe Jammu and Kashmir High Court has dismissed an appeal filed by the government against its single benchs order holding Director Tourism prima facie responsible for committing contempt for violating orders regarding adjustment of a person against an available post of Junior yatchman in the department.
Viewed through the prism of settled position of law, we do not find that the order impugned is the one passed by the Contempt Court in exercise of jurisdiction to punish for contempt, rather it is an order putting appellant No.3 (Director Tourism) on notice to show cause as to why he be not punished for contempt, a division bench of Justice Sanjeev Kumar and Justice M.K.Hanjura said.
The court said that it was needless to say that the government would have ample opportunity to put forth its stand before the Contempt Court and explain that there was no deliberate or wilful disobedience of the order alleged to be violated.
It is for the Contempt Court to consider the plea, if any, taken by the appellants in response to the show cause notice and decide the same in accordance with law. Suffice it to say that the preliminary objection raised by respondent No.1 (state) on the maintainability of this appeal is well founded and deserves to be accepted, the division bench added.
The court said that contention by government that even if it is assumed that the appeal against the order was not maintainable under Section 19(1) of the Act, yet the same would be maintainable under Clause 12 of the Letters Patent.
We have given thoughtful consideration to this aspect of the matter also but do not find any merit in the submission made by the counsel for the appellants-State. Clause 12 of the Letters Patent provides for an appeal from a judgment of the Single Judge passed in exercise of original jurisdiction to the Division Bench. What would be the judgment in terms of Clause 12 of the Letters Patent, has been well explained in series of judgments rendered by the Supreme Court as well as this Court, the division bench said and dismissed the appeal.
A single bench of the court had said: Instead of reporting compliance, the respondents have discussed the entitlement of the petitioner with reference to post being 100% a direct recruitment post to be filled up on the recommendations of the service selection board. The single bench of the court had observed in an order while hearing a petition filed by Mohammad Tayub Laherwal.
(Director Tourism) had no authority to discuss the entitlement of the petitioner with reference to the method of recruitment provided for filling up of the post when this court had already, on consideration of the matter, and being not satisfied, directed him to adopt the analogy of Sonaullah Buhroo (adjusted earlier) and adjust the petitioner against the post, the court had said, underlining that it was beyond the authority of the Director Toursim to reject the claim on a ground which was not available to him in strict terms of judgment.
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