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2009 DIGILAW 436 (JK)

Mohd. Tayub Malla v. State

2009-08-31

MANSOOR AHMAD MIR

body2009
1. Petitioner came to be appointed as Constable in Jammu & Kashmir Police Department on 13th of August, 1979. He along with other constables was deployed on guard duty on bridge at Yaripora Tehsil Kulgam in the year 1994. During the intervening night of 30th/ 31st March, 1994, militants indulged in indiscriminate firing on the guards and damaged the bridge despite resistance by the petitioner and other constables. He and other personnel deployed at the bridge came to be terminated from services by SSP, Anantnag, vide order dated April 11, 1994. Petitioner and other constables challenged the said order before this Court by the medium of writ petition--came to be allowed with liberty to the respondents to hold fresh enquiry in the matter and also denied back wages. Feeling aggrieved, they questioned the order of the learned Single Bench by the medium of LPAs in so far it relates to holding of fresh enquiry and depriving them from back-wages. LPAs came to be allowed vide judgment dated 8th of July, 1999--Annexure-A to the writ petition. The respondents in compliance with the said judgment modified the reinstatement orders of the petitioner and other constables and also paid all back wages to them. 2. Petitioner after reinstatement undertook Lower Class Course successfully from SK Police Academy in the year 1999-2000. It is contended in this writ petition that the petitioner and other police constables whose names are narrated in para 7 of the writ petition and whose services were also terminated, came to be promoted to higher rank--Head Constables while as petitioner was not promoted. He made representation--annexures-B for granting him the same treatment but respondents turned deaf ear and ultimately respondents issued annexure-C whereby petitioner came to be informed that he was denied promotion because he was censured in the year 2001 and his performance was recorded as below average for the year 2000-01, 2001-02. 3. The precise case of the petitioner is that petitioner and other similarly situated constables were entitled to promotion in the year 1998, others came to be considered and promoted while as petitioner was denied the promotion. Further it is contended that there is nothing against the petitioiner till 1999 which could be made basis for denying the promotion. Any un-communicated adverse remark recorded in the APRs or any punishment recorded or awarded after 1999 cannot be made a ground for denying the promotion. Further it is contended that there is nothing against the petitioiner till 1999 which could be made basis for denying the promotion. Any un-communicated adverse remark recorded in the APRs or any punishment recorded or awarded after 1999 cannot be made a ground for denying the promotion. Moreso when such material was not available and adverse APRs were not in existence at that particular point of time. Further case of the petitioner is that he was never conveyed the said ACRs or any punishment. No doubt he came to be terminated becaue of the militant attach but the learned Single Bench and LPA Bench set-aside the termination order and granted all reliefs including the backwages and how that can be now made basis to deny promotion and moreso when others who were also terminated were granted promotion. 4. Petitioner has specifically in paras-9(a), (b) and (c) stated the said facts. Respondents have evasively denied the said facts. It is averred in the reply that the performance of the officials for the period 1997-98, 1998-99, 1999-2000, 2000-01 and 2002 was considered. The petitioner was awarded a censure. His annual remarks for the years 1997-98, 1998-99 and 1999-2000 were not recorded. Whereas, his performance for the year 2000-01, 2001-02 were recorded as below average. 5. It is not denied by the respondents that other similarly situated police constables were granted promotion in the year 1999. It is also not the case of the respondents that any adverse remark is on record or punishment is awarded against the petitioner up to the year 1999. Then what was the basis for denying him the promotion is not forthcoming. How can a government employee/ police constable be denied promotion to which he was entitled to in the year 1999 when other similarly situated persons were granted the same, on the ground that he would commit some mistake in future. If annual remarks were not recorded from 1997 till 2000, it is not the mistake of the petitioner. 6. In the given circumstances, I deem it proper to allow the writ petition and quash the impugned order contained in annexure-C with a further direction to the respondents to consider the case of the petitioner for promotion to the next grade and pass appropriate orders as per the rules occupying the filed. Ordered accordingly. 6. In the given circumstances, I deem it proper to allow the writ petition and quash the impugned order contained in annexure-C with a further direction to the respondents to consider the case of the petitioner for promotion to the next grade and pass appropriate orders as per the rules occupying the filed. Ordered accordingly. The consideration order be passed within three months from the date the copy of this order is served upon the respondents. 7. Writ petition disposed of along with all connected CMPs.