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2011 DIGILAW 523 (JK)

S. K. Sharma v. Union of India and Ors.

2011-09-28

MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge 1. Petitioner is a Head Constable/Radio Operator. The petitioner was awarded severe censure in the year 2000. Petitioner filed writ petition SWP. No. 1223/2006, in which as per the submission of learned counsel for the petitioner, the punishment of severe censure awarded to the petitioner was called in question. The petitioner's further claim is that he has not been considered to undergo required training course at the appropriate time which would enable him to seek consideration for being promoted to the post of ASI-Radio Operator earlier. The SWP.No. 1223/2006 was disposed of by the Court on 2nd of February, 2007. The order is noticed as under:- ..Briefly stated, the petitioner's case is that despite having passed in final test of SUOCC (RO) purporting to have been conducted at 1/2/3/4/5-Singal-Bn CRPF-HQR & CTC (II) CRPF Ranchi (Jharkhand) from 21.03.2006 to 25.03.2006, he was not enlisted in the promotion list. He seeks directions upon the respondents for enlistment in promotion list and other consequential benefits, which may accrue, to him due to such promotion. In given circumstance of the case and with agreement of learned counsel, petition is disposed of with an observation that respondents shall consider the petitioners case for such lawful promotion as may lawfully become due to him as a necessary consequence of having passed the essential test, and consequential benefits, if any, provided he has not acquired any disability or disqualification for such promotion etc. and consideration as such be accorded within three months from now. Petitioner would be at liberty to re-agitate the matter afresh, if cause survives. 2. This petition is filed with the prayer that order dated 4th April, 2007 be quashed and also by issuance of writ of Certiorari, the condition mentioned in the standing Order No. 6/99 in Rule-A relating to Eligibility be quashed. It is also prayed that the punishment of severe censure awarded to the petitioner in the year 2000 be also quashed. It is further prayed to direct the respondents not to treat censure awarded to the petitioner as severe punishment. It is further prayed that the respondents be directed to place the petitioner in the seniority list of ASI at the place over and above the juniors and also consider him for higher promotion. 3. On notice issued, respondents have filed reply affidavit/counter affidavit. 4. It is further prayed that the respondents be directed to place the petitioner in the seniority list of ASI at the place over and above the juniors and also consider him for higher promotion. 3. On notice issued, respondents have filed reply affidavit/counter affidavit. 4. Learned counsel for the petitioner submitted that in terms of Rule 27 of the Central Reserve Police Force Rules, 1955 ( for short 'Rules of 1955'), severe censure is not a punishment. Learned counsel also submitted that though the order of severe censure was challenged in SWP.No. 1223/2006 and the writ petition was disposed of but still the respondents have failed to give appropriate relief to the petitioner which has constrained him to file this writ petition. Learned counsel submitted that the petitioner was required to be given opportunity to undergo training course within a period of six months which having not been done, his legal rights have been adversely affected. Learned counsel restricted his submission as aforementioned. 5. Mr. Makroo, learned ASGI, submitted that in terms of Section- Sub section (3) Clause (c) of the Central Reserve Police Force Act, 1949 (for short 'Act of 1949'), censure or severe censure is a punishment. Learned counsel submitted that the punishment awarded to the petitioner though was a stumbling block in his consideration for assessing his claim for allowing him to undergo training course which would make him eligible for being brought on promotion list, his claim was assessed but he could not secure cut-off marks viz. 30 points. Learned counsel further submitted that in terms of the order impugned in the writ petition, the petitioner secured the minimum cut-off 30 marks and thus secured qualifying marks during screening of records held on 17th of February, 2006 and he was detailed to undergo training course. Learned counsel submitted that on passing the said course, he was brought on special approved list for promotion to the rank of ASI/Radio Operator vide Order No. P.VII-18/2007-14 (C) dated 20th July, 2006. Learned counsel also submitted that in terms of provisions contained in para 11.2, 2(b) of Chapter-XI of Estt. Manual, (determination of seniority), the position of any person who is approved for promotion will ordinarily be determined by the date of entry of his name on the list. Learned counsel also submitted that in terms of provisions contained in para 11.2, 2(b) of Chapter-XI of Estt. Manual, (determination of seniority), the position of any person who is approved for promotion will ordinarily be determined by the date of entry of his name on the list. Learned counsel submitted that the name of the petitioner has been entered in the approved list w.e.f. 20th July, 2006 for promotion to the rank of ASI/RO at appropriate place. Learned counsel finally submitted that in terms of aforementioned provisions the seniority of the petitioner has been correctly fixed and will be promoted to the rank of ASI/RO on his own turn. Learned counsel prayed for dismissal of the writ petition. 6. As per the submissions of learned counsel for the petitioner, the punishment of severe censure which was awarded to him in the year 2000 was subject matter of SWP.No. 1223/2006, as the same was called in question in this writ petition. As already noticed in this judgment, the writ petition was disposed of with the agreement of learned counsel and the Court directed the respondents to consider the petitioners case for such lawful promotion as may lawfully become due to him provided he has not acquired any disability and disqualification for any promotion. Petitioner was given liberty to re-agitate the matter afresh, if cause survives. The earlier judgment of the Court thus placed an embargo on the petitioner to seek consideration for promotion when it was provided that his consideration shall be subject to the fact that he has not acquired disability and disqualification for such promotion. The punishment of 'severe censure' which was called in question in the said writ petition had remained intact and it was this legal disability and disqualification which came in the way of the petitioner to seek promotion to the post of ASI/RO at the appropriate time. The petitioner has challenged the order of severe censure in this writ petition which is inconsequential, inasmuch as, it was not disturbed in the earlier writ petition, the petitioner is precluded from challenging it in the present writ petition. Besides this, the petitioner was considered at every point of time but he could not secure the minimum cut-off 30 marks which would authorize him to undergo training course for being promoted to the rank of ASI/RO. Besides this, the petitioner was considered at every point of time but he could not secure the minimum cut-off 30 marks which would authorize him to undergo training course for being promoted to the rank of ASI/RO. The evaluation of the record of the petitioner which resulted in determining his merit has not been called in question in this petition. The petitioner, when he first time secured the minimum cut-off 30 marks in the year 2006 was detailed to undergo training course which he successfully completed and was accordingly brought on the promotion list. The respondents are bound to accord consideration to the case of the petitioner in terms of the Rules and standing orders occupying the field. The consideration order, which is in favour of the petitioner has been called in question in this writ petition. It is specifically stated by the learned counsel for the respondents that in terms of the Rules and administrative orders, the petitioner will be promoted to the post of ASI/RO on his own turn as he had been brought on the promotion list. The submission of the learned counsel for the petitioner that in terms of Rule 27 of the Rules of 1955, the severe censure is not a punishment is not correct, same being punishment under Section 11(c) of the Central Reserve Police Force Act of 1949. 7. For the above stated reasons this petition is dismissed being meritless. The dismissal of the writ petition shall not come in the way of respondents to consider the petitioners claim for being promoted on the post of ASI/RO in accordance with Rules.