IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 07.05.2025. Pronounced on: 16.05.2025 LPA No. 106/2023 1. UNION TERRITORY OF J&K THROUGH G. PRASANNA RAMASWAMY, COMMISSIONER/SECRETARY TRANSPORT DEPARTMENT, J&K SRINAGAR. 2. RAHUL SHARMA, TRANSPORT COMMISSIONER, JAMMU & KASHMIR, SRINAGAR. ...APPELLANT(S) Through: - Mr. Furqan Yaqub, GA. Vs. ABDUL RASHID BHAT S/O: NOOR-UD-DIN BHAT R/O: NADIHAL, RAFIABAD, BARAMULLA. …RESPONDENT(S) Through:- Mr. R.A. Jan, Sr. Advocate with Ms. Humaira Sajad, Advocate Mr. B.A. Misri, Advocate CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE JUDGMENT Per: Sanjeev Kumar-J: 1. This intra-court appeal by the Union Territory of J&K and Anr, arises out of the orders dated 14th December 2022 and 29th May 2023, passed by a learned single judge of this Court in CPSW No. 784/2014, titled “Abdul Rashid Bhat vs Mr. Hardesh Kumar and Another”. 2. Before we allude to the grounds of challenge urged by the learned counsel for the appellants, we deem it MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 2 appropriate to briefly set out a few facts relevant to the disposal of this appeal. 3. In the year 2013, the respondent filed SWP No. 556/2013 before the learned Single Judge seeking, inter alia, a direction to the appellants to regularize his services in terms of J&K Civil Services (Special Provisions) Act of 2010, [for short “the Act”]. It was pleaded by the respondent that he having been engaged on consolidated basis in the year 1999, had been continuously discharging his duties without any break and, therefore, entitled to be regularized under the Act. The respondent also pleaded for a direction to the appellants to release the pending arrears of his wages. The respondent further based his claim for regularization on the analogy of some similarly situated employees who, as per him, had already been granted the benefit of regularization under the Act. 4. The writ petition was contested by the appellants herein and, in the objections, a clear stand was taken that the respondent was engaged during the period of ban imposed under SRO 64 of 1994 and, therefore, was not entitled to regularization under the said SRO. It was also pleaded by the appellants that the case of the respondent for regularization under the Act, along with other similarly situated persons, was taken up with the Empowered Committee constituted under Section 10 of the Act. The MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 3 Empowered Committee, however, rejected the claim of the respondent for regularization on the grounds that he was a Contingent Paid Worker (CPW) and had not been engaged/appointed against a clear vacancy/post. 5. The plea taken by the appellants herein in the objections was refuted by the respondent by filing a response, in which he inter alia claimed that he had been working against a clear vacancy from the inception of his service and, therefore, was covered by the Act of 2010. Analogy was drawn by the respondent with two candidates, namely Mr. Zamir Yahya Qureshi and Reyaz Ahad Bhat, to claim parity and similar consideration. 6. The writ Court, without going into the merits of the controversy or analyzing the rival stands of the parties, disposed of the writ petition with a direction to the appellants herein to reconsider the claim of the respondent for regularization of his services in terms of the Act and also on the analogy of the similarly situated persons mentioned by the respondent in the response. There was also a direction issued to the appellants to release the arrears of salary due to the respondent since the year 2007. The judgment was passed by the learned Single Judge on 19th November 2013. 7. The respondent approached the Transport Commissioner through the medium of a legal notice dated MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 4 23rd August 2014, calling upon the latter to implement and comply with the judgment dated 19th November, 2013. Complaining that the judgment dated 19th November, 2013, passed by a learned Single Judge, has not been implemented by the appellants, the respondent filed CPSW No. 784/2014 seeking initiation of contempt proceedings against the appellants. 8. The appellants considered the claim of the respondent in terms of judgment dated 19th November, 2013, and vide order No. 86-TC of 2016 dated 30th June, 2016, rejected the same primarily on the following grounds:- (a) That the respondent was engaged in the department from time to time on need basis and not against any clear vacancy or post. One of the prerequisite conditions for consideration of regularization under the Act of 2010 is that the engagement/ appointment of the incumbent on a temporary, consolidated, or ad hoc basis must be against a clear vacancy/post. (b) That in terms of Section 3(d) the person claiming the benefit of regularization under the Act of 2010 must not have received the wages out of local funds/contingent funds. MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 5 (c) That the respondent was not similarly situated with Mr. Zamir Yahya Qureshi and Reyaz Ahad Bhat, who stood engaged against the clear/vacant post, whereas the respondent was engaged on need basis and not against any post. 9. Despite the appellants having rejected the claim of the respondent in compliance with the judgment dated 19th November, 2013, the learned Single Judge vide its order dated 13th December, 2021, directed the appellants to file a fresh compliance report. The matter was again considered by the Commissioner Secretary to the Government, Transport Department, who, vide Government Order 48- JK(TR) of 2022, dated 10th August, 2022, rejected the claim of the respondent in the light of the decision taken by the Empowered Committee in its 12th meeting, coupled with the opinion of the Finance Department and the Department of Law, Justice, and Parliamentary Affairs. 10. This consideration order was placed on record before the Court of learned Single Judge, who did not accept the consideration order as the compliance of the judgment dated 19th November, 2013, on the ground that there was no reconsideration on the analogy of similarly situated persons i.e., Mr. Zamir Yahya Qureshi and Reyaz Ahad Bhat. The MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 6 learned Single Judge vide its order dated 15th September, 2022, passed in CPSW No. 784/2014, directed the appellants to file a fresh compliance report strictly in conformity with the judgment dated 19th November, 2013, and specifically considering the claim of the respondent on the analogy of similarly situated persons. However, in the fresh compliance report filed by the appellants on 13th October, 2022, the same consideration order dated 10th August, 2022, was placed on record. The learned Single Judge took note of the fact that the consideration order, which already stood rejected by the Court, was again relied upon by the appellants to show compliance of the judgment dated 19th November, 2013. A prima facie view was taken that the appellants were in contempt and were required to be proceeded for demeaning the authority of the Court. 11. Vide order dated 14th December, 2022, the learned Single Judge directed framing of rule against the appellants and directed the Transport Commissioner to remain present in person before this Court. This order was followed by another order dated 29th May, 2023, when a last and final opportunity was given to the appellants to file a compliance report, making it clear that in case the judgment dated 19th November, 2013, was not complied with, the Commissioner/Secretary Transport Department, J&K, shall appear in person on the next date of hearing. MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 7 12. Feeling aggrieved by the aforesaid two orders, the appellants are before us in this appeal filed under Clause 12 of the Letters Patent. 13. The impugned orders have been assailed by the appellants essentially on the ground that the judgment passed by this Court dated 19th November, 2013, stood complied with in the year 2016 itself, when the Transport Commissioner passed consideration order bearing No. 86-TC of 2016 dated 30th June, 2016 and, therefore, there was no reason or justification to continue with the contempt proceedings. 14. It is further argued by the learned counsel for the appellants that notwithstanding the compliance reported by the appellants in terms of order dated 30th June, 2016, supra, the matter was again considered under the directions of the learned Single Judge and a detailed Government order bearing No. 48-JK(TR) of 2022 dated 10th August, 2022, was issued by the Government. Although, the learned Single Judge has directed from time to time to file a fresh compliance report, yet no good reasons have been given for rejection of the earlier compliance report(s) filed by the appellants. 15. Per contra, Mr. R.A. Jan, learned senior counsel took a preliminary objection to the maintainability of the appeal MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 8 under Clause 12 of the Letters Patent of this Court. He submits that the impugned orders are essentially the orders directing the appellants to comply with the judgment dated 19th November, 2013, passed in SWP No. 556/2013 and, therefore, cannot be construed as a ‘judgment’ within the meaning of Clause 12 of the Letters Patent. He further submits that under Section 19 of the Contempt of Courts Act, only such orders which are passed in the exercise of jurisdiction to punish the contemnors, are appealable. 16. Having heard learned counsel for the parties and perused the material on record, it is seen that the writ petition bearing SWP No. 556/2013 was disposed of by the learned Single Judge of this Court vide its judgment dated 19th November, 2013, without adjudicating any issue of fact or law. From reading of the entire judgment, it clearly transpires that the learned Single Judge only took notice of the case set up by the respondent and the stand taken by the appellants in their reply affidavit, but did not return any specific findings on the merits of the controversy. The writ petition was simply disposed of with a direction to the appellants to reconsider the claim of the respondent in terms of the Act and on the analogy of the similarly situated persons. 17. The order passed by the Transport Commissioner dated 30th June, 2016, was a complete compliance of the judgment MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 9 passed by the learned Single Judge, in that, the Transport Commissioner having referred to the decision of the Empowered Committee taken in its 47th Meeting on 18th May, 2015, rejected the claim of the respondent for regularization on the ground that in terms of Section 5(i) of the Act, the incumbent seeking regularization must have been engaged against a clear vacancy or a post. It was thus opined by the Transport Commissioner that the respondent having not been engaged against a clear vacancy or post, was not entitled to the benefit of regularization envisaged under the Act. The Transport Commissioner also considered the case of the respondent on the analogy of Mr. Zamir Yahya Qureshi and Reyaz Ahad Bhat and found that the aforesaid two incumbents had been engaged against a clear post and, therefore, were regularized, whereas the respondent was only a need base worker, not employed on a vacant post. 18. The rejection of this consideration order and asking the appellants to pass further orders was totally uncalled for. The direction of the learned Single Judge dated 19th November, 2013, was only to consider the case of the respondent in terms of the Act and on the analogy of similarly situated persons. The writ Court had not returned any finding as to whether the respondent was covered by the Act or not and it was left to the appellants to determine the MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 10 eligibility of the respondent to seek the benefit of the Act. The appellants did not find the respondent eligible under the Act, in particular Section 5(i) thereof and accordingly rejected his claim. The other part of the direction to consider the case of the respondent on the analogy of similarly situated persons was also given due consideration by the appellants and it was found that the two persons named by the respondent were engaged against clear vacancies/posts and, therefore, were a class apart. They were eligible under the Act to seek regularization. 19. In view of the aforesaid, we are convinced that the directions passed by the learned Single Judge from time to time rejecting the consideration accorded by the appellants in compliance with the judgment passed by the writ Court were totally uncalled for. Although the orders passed from time to time including the impugned orders do not direct the appellants to comply with the judgment in a particular manner, yet from rejection of a well-considered order which otherwise is in tune with the judgment dated 19th November, 2013, would tantamount to asking the appellants to accord fresh consideration and regularize the respondent under the Act, notwithstanding his ineligibility to seek such regularization. 20. We are aware that the impugned orders before us are not passed by the learned Single Judge in the exercise of MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 11 jurisdiction to punish the contemnors and, therefore, are not amenable to challenge under Section 19 of the Contempt of Courts Act, but it is equally true that by rejecting the compliance reported by the appellants which is clearly in tune with the judgment dated 19th November, 2013, the learned Single Judge has essentially called upon the appellants to regularize the services of the respondent notwithstanding his ineligibility in terms of Section 5(i) of the Act. The rejection of the compliance of judgment and asking the appellants to do what is not provided in the judgment dated 19th November, 2013, is indeed a decision on the merits of the case and, therefore, amenable to challenge by way of an intra-court appeal provided under Clause 12 of the Letters Patent of this Court. 21. At this juncture, we deem it appropriate to set out Para 11 of the judgment passed by the Hon’ble Supreme Court in case titled “Midnapore Peoples’ Co-op. Bank Ltd. and Ors. Vs. Chunilal Nanda and Ors reported as, AIR 2006 Supreme Court 219”:- “11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:- I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 12 II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly. Re : Point No. (ii).” 22. In view of the above, we hold this appeal maintainable under Clause 12 of the Letters Patent. For the reasons stated above, we find merit in this appeal and the impugned MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25 LPA No. 106/2023 Page No. 13 orders as also the proceedings before the learned Single Judge seized of the contempt petition are quashed. The judgment passed by the writ Court dated 19th November, 2013, in SWP No. 556/2013, stands complied with in terms of the order passed by the Transport Commissioner bearing No. 86-TC of 2016 dated 30th June, 2016. The other orders of consideration passed thereafter are inconsequential and are required to be ignored. We, however, make it clear that dismissal of contempt proceedings pending before the learned Single Judge shall not debar the respondent herein to work out his remedies against consideration order bearing No. 86-TC of 2016 dated 30th June, 2016, in accordance with law. (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE Srinagar, 16.05.2025 “Mir Arif” Whether the Judgment is reportable? Yes/No Whether the Judgment is speaking? Yes/No MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 19.05.25