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2007 DIGILAW 15 (JK)

Mohd. Hussain v. State Of J. &K.

2007-02-14

MANSOOR AHMAD MIR

body2007
1. The petitioner was appointed as constable in the respondent-Department. He came to be absorbed in the Photography cadre vide PHQ order No. 65/1991 dated 31-1-1991. In terms of order No. 32 of 1991 dated 12-3-1991, petitioner was adjusted in District Photo Section Kargil. He stood relieved by S.P. Kargil on 17-3-1992, i.e. after a gape of more than one year and joined in the Photo Section Kargil. He along with other constables was promoted as SGC by DIGP, Kashmir w.e.f. 1-1-1992 vide order No. 328 of 1992 dated 25-5-1992. His promotion order was subsequently cancelled by the DIG Kashmir vide order No. 9/1994 dated 6-1-1994. Feeling aggrieved of the order dated 6-1-1994, petitioner submitted an application requesting therein that he may be deemed to have been promoted as SGC in the Photography cadre. His case was recommended by SP Crimes to IGP Crime/Railway and Modernization, J&K Srinagar, with the request that the petitioner be deemed to have been inducted in Photo cadre as SGC w.e.f.-1-3-1992 i.e. the date of his joining in Photography wing. Instead of accepting the recommendations, the IGP Kashmir in terms of order No. 2620 of 1994 dated 26-12-1994 cancelled the promotion of the petitioner. 2. Respondents have resisted the claim of the petitioner on various grounds taken therein. The main ground of attack in the reply is that the petitioners lien was shifted vide order No. 65/1991 dated 31-1-l99l and at the time of passing of the promotion order, the petitioner was not in the executive police and had joined in the Photography cadre and his lien had also come to an end. 3. Heard learned counsel for the parties and considered the matter. The grievance of the petitioner in nutshell is that in terms of order No. 65 of 1991 dated 31-1-1991, he came to be absorbed in the Photo cadre as constable. His lien had to come to an end on the date when he actually joined in the Photography cadre. Petitioner in terms of the said order came to be relieved by SP Kargil on 17-3-1992 itself and joined in District Photo Section, Kargil on 17-3-1992. The promotion order dated 25-5-1992 had taken effect from 1-1-1992 when he was working as Constable, Kashmir Range, and was rightly considered for promotion and accordingly order dated 25-5-1992 came to be passed. Petitioner in terms of the said order came to be relieved by SP Kargil on 17-3-1992 itself and joined in District Photo Section, Kargil on 17-3-1992. The promotion order dated 25-5-1992 had taken effect from 1-1-1992 when he was working as Constable, Kashmir Range, and was rightly considered for promotion and accordingly order dated 25-5-1992 came to be passed. But without any enquiry and hearing the petitioner, the said order of promotion came to be cancelled/revoked. Thus the order dated 26-12-1994 being violative of principles of natural justice merits to be quashed. 4. Apex court in case reported as P. P. Muralidharan Vs. Zonal Manager, AIR 1995 SC 670, held that denial of promotion on ground that he had severed the connection and lien on post and relinquished his rights in pre-transfer post cannot be made a ground to refuse promotion when said employee had become entitled for promotion on the basis of seniority. It is profitable to reproduce para 8 of the judgement hereunder: "..... As indicated earlier, the circular dated February 14, 1972 fixing the quota for promotion of Stenographers, Gr.II to the post of Assistant Gr. I was quashed, by the Delhi High Court, by judgement dated March 18, 1983. the effect of quashing of the said circular was that the appellant had to be considered for promotion to the post of Stenographer Gr. I/Assistant, Gr. I without reference of the said circular. Applying the said decision of the Delhi High Court the Zonal Manager of the Eastern zone of the Corporation vide his communication dated November 19, 1985 requested the Zonal Manager, Southern zone to upgrade the appellant to the post of Assistant, Gr. I with effect from January 1, 1973 as was due to him. This would mean that had the appellant continued in the Eastern Zone he would have been promoted as Assistant, Gr. 1 with effect from January I, T973. The only reason why the said proposal was not accepted was that consequent to his transfer from the Eastern Zone to the Southern zone the appellant had severed his lien with the Eastern zone. The said transfer, however, took place in the year 1975. Even if it is held, that the lien of the appellant in the Eastern zone got terminated on his transfer to the Southern zone that could only be in 1975 when he was transferred. The said transfer, however, took place in the year 1975. Even if it is held, that the lien of the appellant in the Eastern zone got terminated on his transfer to the Southern zone that could only be in 1975 when he was transferred. Till then the appellant was working in the Eastern zone and was having his lien in the said zone. In view of the quashing of the circular dated 14-2-1972 he was due for promotion to the post of Assistant Gr. 1 w.e.f. January 1, 1973. There appears to be no reason why the said promotion should be denied to him merely because he was transferred from the Eastern zone to the Southern zone in the year 1975. " 5. Applying the ratio laid down in the aforesaid case, admittedly petitioner joined, the Photo Section on 17-3-1992 when he was entitled for promotion on 1-1-1992. Thus the respondents have wrongly cancelled his order of promotion. In the given circumstances, the impugned order has no legs to stand in the eye of law. 6. Having glance of the aforesaid discussions, this petition merits to be allowed. The petition is accordingly allowed and the impugned order No. 9 of 1994 dated6-l-1994 read with order dated No. 2620 of 1994 dated 26-12-1994 are quashed and the petitioner be deemed to have been promoted to the post of SGC notionally with effect from the date of issue of promotion order till ending November 2006 and there-after he be given all monetary benefits of the promotion. Disposed of along with all connected CMPs.