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J&K High Court · body

2010 DIGILAW 600 (JK)

Ali Mohd. Bhat v. State

2010-12-08

MUZAFFAR HUSSAIN ATTAR

body2010
1. The grievances of the petitioner commenced in the year 1968, when he was not placed in List `E’ which would enable him for being promoted to the rank of Sub Inspector of police (SI for short). The stumbling block in not placing him the `E’ list was that he had suffered two major and one minor punishments. He was, subsequently, promoted and appointed to the next higher post/rank. By now he has retired from service on superannuation. 2. The petitioner, after finding that respondent No.3, who had suffered 3 major and two minor punishments and was junior to him in the rank of Assistant Sub Inspector of police (ASI for short), was placed in `E’ list and promoted to the rank of SI in the year 1968, filed representations seeking redressal of his grievances. In this regard, it is submitted that Under Secretary to Govt. Home Department vide his communication bearing No. Home/29/G/91-PR-III dated 10-06-1992 addressed to the Director General of Police, highlighted the issues referred to hereinabove and stated that as no reasons have been recorded for not promoting the petitioner to the rank of SI in the year 1968, so his (petitioner’s) case be considered for promotion as SI in the year 1968 when his juniors were promoted. However, grievances of the petitioner were not redressed which prompted him to approach the Court by medium of SWP 1486/95. The said writ petition was disposed of by the Court vide its order dated 01-02-1996 with the direction to respondent No.2 therein to consider and dispose of the aforementioned communication within six weeks from the date of receipt of the order and inform the petitioner about the decision taken. As the respondent No.2 had, allegedly, not implemented the judgement, the petitioner filed a Contempt petition 167/96 but same was dismissed for non prosecution on 29-01-2004 as nobody appeared for petitioner in the matter. However, petitioner was given liberty to approach the Court if his grievances were not redressed. As the respondent No.2 had, allegedly, not implemented the judgement, the petitioner filed a Contempt petition 167/96 but same was dismissed for non prosecution on 29-01-2004 as nobody appeared for petitioner in the matter. However, petitioner was given liberty to approach the Court if his grievances were not redressed. Thereafter the petitioner filed another contempt petition 308/06, wherein statement of facts was filed and a stand was taken by the respondents that communication dated 10-06-1992 was considered in the light of the DPC norms, vis-a-vis service record of the petitioner where it emerged that the petitioner had suffered one major and two minor punishments and as such he was declared to be unfit for promotion to the post of SI in the year 1968 when the DPC was convened for making promotion to the said post. This contempt petition was also dismissed by the Court vide order dated 15-09-2007 giving liberty to the petitioner to invoke appropriate remedy against the order of consideration. It is how the writ petition on hand is filed. 3. On notice issued, respondents filed objections. However, after admission of the writ petition as the counter affidavit was not filed, the Court vide order dated 24-11-2010 allowed one week’s last and final opportunity for filing counter affidavit and it was made clear that if counter affidavit is not filed within the stipulated period, right to file the same shall stand closed and case will be processed for final hearing. Note of the Registry reveals that counter affidavit has not been filed, therefore, matter has come up for final hearing. 4. Heard learned counsel for the parties. Considered the matter. 5. The grievance as projected by Mr. Bashir, learned counsel for the petitioner, is that despite the fact that the respondent No.3 had suffered more major and minor punishments than the petitioner and was, admittedly, junior to the petitioner yet his case was considered by the DPC in the year 1968 and he was placed on `E’ list and thereafter promoted and appointed to the rank of SI, whereas, the petitioner, who had suffered less punishments both major as well as minor, has been subjected to invidious discrimination. The learned counsel for the petitioner also submitted that the communication dated 10-06-1992, issued by the Under Secretary to Govt. The learned counsel for the petitioner also submitted that the communication dated 10-06-1992, issued by the Under Secretary to Govt. Home Department, was specific in its tenor that the petitioner shall be considered for promotion as SI in the year 1968 when his juniors were promoted. It was also stated in the said communication that as no reason is recorded for non consideration of the petitioner, the denial of promotion to the petitioner would warrant reconsideration. It is submitted by learned counsel for the petitioner that no decision till date has been taken in the light of the aforementioned communication. Mr. Bashir, learned counsel for the petitioner has also invited attention of the Court to the tentative seniority list annexed with the writ petition to show that the petitioner figures at S.No.216 of the said seniority list whereas respondent No.3 figures at S.No.392. He also submitted that it is not denied in the objections, filed prior to admission of the writ petition to hearing, that the respondent No.3 was promoted to the rank of SI in the year 1968. Learned counsel also submitted that even in the objections, the contention raised in the aforesaid communication has not been specifically dealt with. He further submitted that claim of the petitioner requires to be allowed. 6. Learned counsel for the respondents submitted that the writ petition suffers from latches. She also submitted that the claim of the petitioner was considered but as he had suffered punishments, therefore, he was not found eligible for being placed in `E’ list and thereafter he was not considered for being promoted and appointed to the next rank of SI when the DPC was convened and when other persons were promoted to the next rank of SI. Learned counsel for the respondents further submitted that in view of the orders passed in the earlier writ petition (SWP 1486/95) and the decision taken in pursuance thereto, this writ petition is not maintainable. It was, accordingly, submitted by her that the writ petition merits dismissal. 7. In view of the material brought on record, it is not in dispute that respondent No.3 had suffered three major and two minor punishments, whereas the petitioner had suffered two major and one minor punishments. It was, accordingly, submitted by her that the writ petition merits dismissal. 7. In view of the material brought on record, it is not in dispute that respondent No.3 had suffered three major and two minor punishments, whereas the petitioner had suffered two major and one minor punishments. In view of the communication dated 10-06-1992, no reason has been recorded by the respondents as to why the petitioner was not brought on promotion `E’ list and, subsequently, not considered for being promoted and appointed to the next higher rank/post of SI in the year 1968 when his junior, viz. respondent No.3, was brought on promotion `E’ list and was also promoted and appointed to the rank/post of SI. Even in the objections, nothing is said on the issue raised in the communication dated 10-06-1992. Same was the case in the statement of facts filed in the contempt petitions seeking implementation of the judgement passed in the earlier writ petition (SWP 1486/95). 8. From the record available, what emerges is that when officials were brought on promotion `E’ list, person, viz. respondent No.3, who had suffered major punishments, was also brought on the promotion `E’ list and thereafter promoted/appointed to the rank of SI. The respondents, if they have promoted/appointed respondent No.3 to the rank of SI, what prevented them from not considering the claim of the petitioner for meting out same treatment, nothing is forthcoming. It appears that the petitioner has been subjected to discrimination by not considering his claim for being promoted/appointed to the next higher post/rank of SI in the year 1968. 9. The respondent-State and its authorities are governed by the rule of law. In view of the mandate contained in article 14 of the Constitution of India, they have to treat similarly circumstanced people similarly. If the infliction of punishment has not become an impediment in the case of the respondent No.3 for according consideration to him from being promoted/appointed to the rank/post of SI, same could not have, as well, become a stumbling block for the petitioner to be accorded consideration for being promoted/appointed to the rank/post of SI. What has become crystal clear in this case is that suffering of punishments was not considered by the respondents to be a ground for denying consideration to an employee for being promoted/appointed to the next higher post/rank. What has become crystal clear in this case is that suffering of punishments was not considered by the respondents to be a ground for denying consideration to an employee for being promoted/appointed to the next higher post/rank. In the facts and circumstances of this case, the petitioner has been, illegally and arbitrarily, denied right of consideration for being promoted/appointed to the rank/post of SI. The respondents are not saying that the respondent No.3 had not suffered punishments as mentioned hereinabove. They have not even dealt with his case in their objections and statement of facts filed by them before the Court in the earlier round of litigation. The petitioner has been craving for justice for all these years and is now living a life as a retired employee. Severance of relationship between the petitioner and the official respondents, after the former’s retirement on superannuation, would not mean that the rights, which would flow to the him from the constitutional provisions, can also be denied to him. This Court is the sentinel of the rights of people and it becomes its duty to undo the injustice meted out to a person. It cannot be said that the injustice, though staring one in the face, cannot be remedied because of the distance of time. Such an argument cannot be countenanced in the situation like this where the petitioner has been striving for justice all these years. Respondents are duty bound to remedy the wrong that has been committed in the case of the petitioner. 10. For the above stated reasons, this petition is allowed in the following manner : "By issuance of writ of mandamus, respondents 1&2 are directed to consider claim of the petitioner for being promoted/appointed to the rank/post of Sub Inspector of Police from the year 1968 on the analogy of respondent No. 3. Respondents are further directed to give notional benefits to the petitioner from the date his juniors have been promoted/appointed to the rank/post of Sub Inspector in the year 1968. They shall also give all subsequent benefits to the petitioner including grant of promotion to the next higher rank/post. The benefits will accrue to the petitioner nationally for the period he has not, actually, worked on the post. He will, however, be entitled to get all the retrial benefits on the basis of the benefits which will accrue to him in view of aforementioned direction. The benefits will accrue to the petitioner nationally for the period he has not, actually, worked on the post. He will, however, be entitled to get all the retrial benefits on the basis of the benefits which will accrue to him in view of aforementioned direction. The exercise to be conducted by the official respondents within a period of three months to be reckoned from the date a copy of this judgement is served on them." 11. Disposed of along with all connected CMPs.