Permitting Executive To Review Or Sit Over Court's Decisions Would Tantamount To Interference With Judicial Functions: J&K&L High Court

The observations were made by the bench comprising Justices Sanjeev Kumar and Moksha Kazmi while hearing a bunch of petitions challenging a Government Order prescribing closure of Rehbar-E-Taleem Scheme announced in the year 2000 which envisioned engaging teachers to improvise elementary education through community participation. The pleas also threw a challenge to the cancellation/withdrawal of all advertisement notices issued for making engagement of Rehbar-E-Taleem or the panels prepared where no engagement orders have been issued under the scheme.

The petitioners contended that the respondents were refusing to comply with the concluded judgments of this court rendered prior to the issuance of the impugned order. Petitioners further argued that in many cases, the right to be engaged had accrued to the petitioners prior to the issuance of the impugned Government order, but the formal order of engagement could not be issued due to the pendency of litigation.

The petitioners prayed the indulgence of the Court to clarify the true import, effect and impact of the impugned Government order on the litigation pending in this Court at various stages as also on the selection process initiated under the Scheme (now closed) which is held up due to litigation involving inter-se disputes between the candidates.

While perusing the record the court noted that in the process of making recruitment of ReTs various disputes with regard to the eligibility of the candidates to be considered vis-à-vis their qualification and place of residence were challenged by way of several writ petitions.

The bench further noted that while these different types of writ petitions were pending adjudication and in some cases, even the successful writ petitioners had filed the contempt petition which too was pending, the Government issued the impugned order directing the closure of the ReT Scheme and also providing therein the impact, effect and the consequences of the closure of ReT Scheme.

Finding the challenge to the Government order impugned totally baseless and misconceived the bench said that the scheme known as ReT was promulgated by way of an executive order and the same did not contain any promise that the scheme will remain in operation for all times to come, on the basis whereof, a candidate can claim to have entertained a legitimate expectation. We, therefore, see no reason as to why the Government which issued the Scheme cannot withdraw the same, the court added.

However deliberating on the contention of the petitioners that the respondents are denying the benefit of concluded judgments passed by this Court on the ground that the same are incapable of being implemented in view of issuance of the impugned Government order, the court observed,

“In the constitutional scheme that we have, the Executive is under an obligation to obey the judicial orders. The Legislature, may, in certain situations,nullify a judicial or executive decision by enacting appropriate legislation, however, absent such legislation, neither the Executive nor the Legislature could set aside a judicial order” further adding that” Permitting the Executive to review, revise or sit over the decisions of the Court by issuing executive orders or instructions would be tantamount to interference with the exercise of judicial functions by the Judiciary”.

Accordingly, while culling out the conclusion and explaining the impact of the government order on the pending litigation the court clarified that the impugned Government order will not affect the select panels prepared by the respondents which have been acted upon and formal orders of engagement have been issued. The impugned Government Order will also not override or affect the judgments passed or to be passed by this Court holding a candidate/candidates entitled to engagement in the selection process which was/is under challenge before the Court, the bench concluded.

Case Title: Rukhsana Jabeen Vs State of J&K

Citation: 2023 LiveLaw (JKL) 15

Coram: Justice Sanjeev Kumar & Justice Moksha Khajuria Kazmi

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