* AG’s statement binding on official machinery
Mohinder Verma
JAMMU, Dec 18: Reprimanding the bureaucrats of Jammu and Kashmir, Chief Justice of High Court, Justice N Paul Vasanthakumar today said that State is adopting defiant attitude towards the orders being issued by the High Court and the same has led to filing of more than 1600 contempt petitions during the current year so far.
“It is well settled in law that when the order of the court has become final, its implementation is mandatory”, he said, adding “forcing a party who succeeded before the court to file contempt petition like execution petitions before the Trial Court is an unhealthy practice”.
Stating that such a practice is consuming lot of court time, the Chief Justice said, “if orders of the court are obeyed without forcing the parties to file the contempt proceedings, the court will be in a position to decide the pending matters which will definitely reduce the pendency to a large extent”.
“It is relevant to note that as per the details furnished by the Registry, more than 1600 contempt petitions were preferred as on today before the Jammu and Kashmir High Court in the year 2015 and this shows the defiant attitude of the State or delay in implementing the orders of this court”, the Chief Justice further said.
Chief Justice, who was heading the Division Bench of the High Court with Justice Bansi Lal Bhat, made these observations in a contempt petition vis-à-vis setting up of a Degree College at Majalta in Udhampur district.
The contempt petition was filed before the Division Bench after the State failed to implement the statement made by the then Advocate General, in a Public Interest Litigation, mentioning that claim for setting up of Degree Colleges at Majalta, Chenani, Sunderbani, Kalakote, Magham and Gool merits to be considered and there was likelihood of establishment of a Degree College at Majalta in the year 2012.
The grievance of the petitioner in the contempt petition was that inspite of the assurance given by the Advocate General, which was even recorded in the order dated September 11, 2012, neither the college was set up at Majalta nor any step has been taken in that direction. He submitted that the action of the State Government in not complying with the assurance given by the Advocate General on behalf of the State Government is an act of willful disobedience as such the respondents should be proceeded.
After hearing Advocate Abhinav Sharma appearing for the PIL whereas AAG Rakesh Khajuria appearing for the State and Advocate Gagan Basotra appearing for the Commissioner/Secretary Education Department, the Division Bench observed, “though the contempt petition was listed on November 18 and 26, 2015 and thereafter on December 1, 14, 15 and 16 yet there was no response from the Government and this compelled us to issue directions to the Commissioner Secretary Higher Education to remain present in the court to explain the steps taken for implementing the assurance given by the Advocate General vis-à-vis Degree College at Majalta”.
“Pursuant to this direction, response has been filed very reluctantly today stating that it is the prerogative of the State Cabinet in terms of Rule 14 (2) of the J&K Government Business Rule, 1968 to decide the issue”, the DB said, adding “however, keeping in view the order of this court, the Education Secretary has submitted a note before the Minister of Education, who is the competent authority to approve the proposal for placing before the State Cabinet for final decision”.
“The status report filed by Commissioner/Secretary Higher Education reveals how casually the Government is dealing with the court order which was passed based on the assurance given by the Advocate General, who represented the State as early as on 11.09.2012”, the DB said, adding “the counsels appearing for the respondents were not in a position to say whether the State Government will establish a Degree College at Majalta (Udhampur) in academic year 2016-2017 at least”.
“The counsels submitted that the Cabinet will make a call to decide the matter. The status report filed by the Commissioner/Secretary Higher Education today is also on the same lines. In such circumstances, we are bound to consider as to whether the Cabinet can over throw the judgment or take a decision contrary to the assurance given by the Advocate General before this court”, the DB noted with concern.
The DB further said, “it is manifest that the State Government through Advocate General has with full responsibility made an assurance which is bound to be complied with. The contention of the Commissioner/ Secretary Higher Education that the State Government will make a call whether to implement the order of the court or not cannot be countenanced”.
“The Government must keep in mind that the statement made by the Advocate General on behalf of the State is binding on the State”, the DB said and while keeping in view the assurance of the counsel for the respondents adjourned the matter till December 30, 2015 for placing the sanction order vis-à-vis Degree College at Majalta.
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