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Judgment
Mr. Shah Amir, learned AAG seeks permission to place on record response/compliance report on behalf of Director Health Services, Kashmir. Permission is granted. Response taken on record, copy whereof provided to counsel for other side in open court.
Petitioner alleges violation of judgment / final order passed by this court on 12.04.2016 in SWP No. 1751/2014. The operative portion being relevant, is extracted hereunder:
" In view of above, the writ petition succeeds and is allowed as such alongwith all CMPs. Respondents, by a writ of mandamus, are commanded to process, settle and release all the pensionary and retiral benefits in favour of the petitioner, with effect from the date the same has become due to him viz February 2012, as if nothing incriminating was alleged or found against him and pay him the unpaid salary also notwithstanding the order of suspension. All the respondents in general and respondent No.2 in particular is directed to release pensionary and retiral benefits in favour of the petitioner including the arrears etc., as also the unpaid salary, if any, within a period of two months from the date copy of the order is served upon him.
On notice, respondent No.1 - Principal Secretary, Health and Medical Education J&K, Srinagar has filed statement of facts, perusal whereof reveals that the only ground taken for non-implementation, is the filing of LPA bearing LPA No.91/2017. On 17.04.2019 it was noticed that the LPA stands dismissed in terms of order passed on 22.08.2017. therefore, respondent No.2 - Director Health Services Kashmir was asked to appear in person before the Court alongwith compliance.
Today Director Health Services Kashmir, is not present. However, when asked Mr. Shah Amir, learned AAG submits that because of unavoidable circumstances, the Director could not appear and undertakes to ensure her appearance on the next date of hearing.
Admittedly, the judgment passed by the this court on 12.04.2016 has earned finality in so far as this court is concerned after dismissal of the LPA filed by the State of J&K. Therefore, there is no scope for the respondents to join any issue with reference to implementation of the judgement in the manner the directions are passed. Otherwise that will amount further contempt of court.
Mr. Shah Amir, learned AAG submits that LPA was dismissed for want of prosecution. However, the respondents have already filed motion for seeking restoration of the appeal. Mere filing of restoration application seeking restoration of dismissed appeal is not a ground for delaying the implementation.
The issue raised in the statement of facts filed by the respondent - Director Health Services, Kashmir, has no relevance as the court on adjudication of the matter and in terms of the judgment directed the respondents in general and respondent No.2 in particular to process, settle and release all the pensionary/retiral benefits in favour of the petitioner with effect from February 2012, as if nothing incriminating was alleged or found against him and pay him the unpaid salary also notwithstanding the order of suspension.
The only scope for the respondents is to implement the judgment and (i) release unpaid salary in favour of the petitioner (ii) process, settle and release pensionary /retiral benefits in favour of the petitioner w.e.f February 2012 but any issue joined by the respondents will land the respondents in problem.
In view of the above and before framing rule against both Principal Secretary to Government Health and Medical Education J&K, Srinagar and Director, Health Service Kashmir, it is in the interest of justice that one more opportunity of three weeks is granted to the respondents to implement the judgment by releasing the pensionary and retiral benefits in favour of the petitioner as also release all unpaid salary for the period of suspension. Both the respondents shall collectively ensure implementation of the judgment. The compliance shall be filed by or before next date of hearing. The Director Health Services shall appear in person on next date of hearing.
List on 29.05.2019.
Registry to convey the order to both the respondents copy Whereof shall be furnished to Mr. Shah Amir, learned AAG for compliance.