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2011 DIGILAW 7 (JK)

Mohd. Sharif Shah v. State and ors.

2011-01-01

HASNAIN MASSODI

body2011
The petitioner appointed as Constable in Jammu and Kashmir Police on 17th March, 1979, was on 23th July, 1992, while posted at police post Warwan deputed to undergo refresher course at District Police Lines, Doda. The training course concluded on 12.9.1992 and the petitioner was relieved from District Police Lines and directed to report at police post Warwan. The petitioner could not report to his duty because of his illness and hospitalization till 13th October, 1992. The petitioner's unauthorised absence w.e.f. 13.9.1992 to 13.10.1992 led to an enquiry held by Sub Divisional Police Officer, Kishtwar and the period of unauthorised absence of 30 days w.e.f. 13.9.1992 to 13.10.1992 was treated as "Dies-non". When the petitioner was on unauthorised absence, a group of militants on 12.10.1992 attacked police post Warwan and looted arms and ammunitions without any resistance from the police personal posted at police post Warwan. The incident also led to an enquiry conducted by Sub Divisional Police Officer, Kishtwar. The Disciplinary Authority on the basis of enquiry report concluding that petitioner was present on duty on 12.10.1992 at police post Warwan and had shown cowardice and negligence towards duty, vide order no. 697 of 1993 imposed punishment of forfeiture of annual increment for three years, on the petitioner. The conclusion was drawn oblivious to finding returned by the Enquiry Officer (Sub Divisional Police Officer, Kishtwar) in enquiry regarding unauthorised absence of the petitioner, wherein the petitioner was found to have been unauthorisedly absent from duty till 13.10.1992 i.e. one day after the incident of militant attacked on police post Warwan. The petitioner filed a review petition impressing upon the authorities that as he was not physically present at police post Warwan on 12.10.1992, he could not be held responsible for failure 10 repel the militant attack. The Disciplinary Authority impressed only the case set up vide order No. 493 of 1999 dated 9.3.1999 reviewed-the earlier order No. 697 of 1993 dated 20.11.1993 and converted the forfeiture of annual increment for three years into stoppage of annual increment for one year. The Disciplinary Authority impressed only the case set up vide order No. 493 of 1999 dated 9.3.1999 reviewed-the earlier order No. 697 of 1993 dated 20.11.1993 and converted the forfeiture of annual increment for three years into stoppage of annual increment for one year. The petitioner questioned order No. 488 of 1993 dated 12.8.1993 whereby his period of unauthorised absence was treated as "Dies-non ", order No. 697 of 1993 dated 20.11.1993 imposing punishment of forfeiture of annual increment for three years and order No. 493 of 1999 dated 9.3.1999 converting the forfeiture of annual increment for three years into stoppage of annual increment for one year, in a writ petition registered as SWP No. 1348/1999. The writ Court vide order dated 27.7.2001, while disposing of the writ petition held the order No. 493 of 1999 dated 9.3.1999 to have been "passed after taking into consideration all the facts and circumstances of the case" and observed that "no room is made out for interference" with the order. The Writ Court opined that challenge to the order NO. 488 of 1993 dated 12.8.1993 was belated, but noticing the case law on the subject modified the order No. 488 of 1993 dated 12.8.1993 to the effect that the period of absence shall not be treated as break in service but the petitioner shalf not be entitled to any wages for this period. The petitioner sought review of the writ Court order dated 27.7.2001 through medium of a review petition registered as Review (SW) No. 1348/1999. The review petition was disposed of vide Order No. 12.2.2002, reiterating that there would be no break in service. The controversy as regards the order No. 488 of 1993 dated 12.8.1993 thus stands finally resettled. The petitioner has once again approached the Court-now with a grievance that the petitioner has not been considered for promotion to the post of Selection Grade Constable w.e.f. December, 1995 and to the post of Head constable w.e.f. December, 2000 on the erroneous assumption that the order no. 488 of 1993 dated 12.8.1993 amounted to break in service of the petitioner. 488 of 1993 dated 12.8.1993 amounted to break in service of the petitioner. The petitioner complains that he has been promoted as Selection Grade Constable on 11.1.1998 and is yet to be promoted to the post of Head Constable as on the date of filing of the writ petition, though the petitioner having regard to his seniority was to be promoted as Selection Grade Constable w.e.f. December, 1995-and Head Constable five years thereafter i.e. w.e.f. December, 2000. The petitioner detailing the facts and events mapped out hereinabove in the petition, seeks following reliefs: (i) Writ of mandamus directing the respondents to declare/treat the petitioner to have been promoted as Selection Grade constable in Jammu and Kashmir Police w.e.f. 12/1995 and as Head Constable w.ef. 12/2000. With further directions to the respondents to fix the seniority of the petitioner at the rightful place and so also to grant him further service benefits; ii) Writ of mandamus directing the respondents to release and pay increments w.e.f. 13th of September till date and so also pay of Selection Grade Constable from 12/1995 till 12/2000 and thereafter the pay of Head Constable from 12/2000 till date; With Further directions to the respondents to release the arrears forthwith". The respondents in their reply have admitted almost all the factual aspects of the case set out in the petition. It is admitted that the petitioner was deputed to refresher course at District Police Lines, Doda as stated in the petition and that after the petitioner failed to report back in time, and the police post Warwan, fell victim of militant attack, order Nos. 488 of 1993 dated 12.8.1993 and 493 of 1999 dated 9.3.1999 were made by the Disciplinary Authority imposing punishments on the petitioner. It is also admitted that the Writ Court while disposing of the writ petition filed by the petitioner followed by review petition held the period of unauthorised absence not to be taken as a break in service but as a period without pay. The respondents, however, point to some other allegations of misconduct levelled against the petitioner while the petitioner was posted at police station, Manvan. The respondents insist that none of the fundamental, Constitutional legal rights of the petitioner has been violated and dispute his right to invoke extraordinary writ jurisdiction of the Court. I-have gone through the pleadings and the record available on the file. The respondents insist that none of the fundamental, Constitutional legal rights of the petitioner has been violated and dispute his right to invoke extraordinary writ jurisdiction of the Court. I-have gone through the pleadings and the record available on the file. I have heard learned counsel for the parties. The controversy involved in the petition, in view of the admitted position of the parties, lies in a narrow compass. The order No. 493 of 1999 dated 9.3.1999 whereby punishment of forfeiture of annual increment for a period of three years ordered vide order No. 697 of 1993 dated 20.11.1993, has been converted into stoppage for a. period of one year, is not open to challenge in view of finding returned by the Writ court while disposing of SWP No. 1348/1999 dated 27.7.2001 that order has been passed "after taking into consideration all the facts and circumstances of the case" and that "no room is made out for interference". There has been no challenge to the finding returned by the Writ Court from either side and the finding as such has assumed finality. So viewed, the petitioner is to be visited with consequences whatever flow out of order No. 493 of 1999 dated 9.3.1999. The respondents are expected to notice that the order No. 493 of 1999 dated 9.3.1999 does not impose any punishment on the petitioner as would by itself entitle the respondents to defer or deny promotion, otherwise due to the petitioner. The aforementioned order, it is pertinent to point out does not direct "forfeiture of increment" but only "stoppage of increment for one year". It implies that once the period during which increment is stopped, is over, the annual increment is to be released to the petitioner as a matter of course. Same may not be true about "forfeiture of the increment". In short order No. 493 of 1999 dated 9.3.1999 does not stand in the way of the petitioner to get promotion whatever is due to the petitioner. Let us now turn attention to order No. 488 of 1993 dated 12.8.1993. It may be recalled that this order was also subject to challenge in SWP NO. 1348/1999. In short order No. 493 of 1999 dated 9.3.1999 does not stand in the way of the petitioner to get promotion whatever is due to the petitioner. Let us now turn attention to order No. 488 of 1993 dated 12.8.1993. It may be recalled that this order was also subject to challenge in SWP NO. 1348/1999. The Writ Court while directing that the period of absence shall not be treated as break in service observed as under: "In view of the legal position noticed above, the order dated 12.8.1993 shall stand modified to the effect that the period of absence shall not be treated as break in service but the petitioner shall not be entitled to any wages for this period". The order dated 12.2.2002 in review petition whereby the aforesaid order was sought to be reviewed, is equally important and needs to be noticed. It reads: "It be seen that a direction has already been given to the effect that there would be no break in service. This observation implies that the petitioner would be entitled to other consequential benefits also. The review petition as such is disposed of accordingly, petitioner is entitled to all the consequential benefits except monetary benefits". The net effect of the Writ Court order dated 27.7.2001 in SWP No. 1348/1999 and order dated 12.2.2002 in review petition (SW) No. 1348/1999 is that the period of unauthorised absence w.e.f. ,13.9.1992 to 13.10.1992 is not to be taken as break in service, though the petitioner is not entitled to be paid for said period. The petitioner is nonetheless entitled to all the benefits included promotion to the next higher post. To sum up neither order No. 488 of 1993 dated 12.8.1993 nor order dated 493 of 1999 dated 9.3.1999 can stand in the way of the petitioner to be promoted to the next higher post to which he is otherwise, entitled. The respondents resultantly, acted in violation of fundamental, Constitutional and Statutory rights of the petitioner while declining consideration to the petitioner for promotion to the post of Selection Grade Constable in December, 1995 and thereafter to the post of Head Constable in December, 2000. It needs to be pointed out that right to promotion is an integral part of right guaranteed under Article 16 Constitution of India. It needs to be pointed out that right to promotion is an integral part of right guaranteed under Article 16 Constitution of India. It is equally important to note that the promotion of a Government employee to the next higher post available under the recruitment rules, does not depend exclusively on seniority but on merit as well. In the circumstances, the Court though in agreement with the case set up in the petition, cannot direct the respondents to promote the petitioner to the next higher post(s) with effect from the date(s) mentioned in the petition. The Court can only direct the respondents to accord consideration to the promotion of the petitioner having regard to the criteria laid down under rules for such promotion. For the reasons discussed above, the writ petition is allowed and respondents by a Writ of Mandamus are commanded to accord consideration to promotion of the petitioner to the post of Selection Grade Constable w.e.f December, 1995 and thereafter to the post of Head Constable w.e.f. December, 2000 in accordance with criteria prescribed under rules. The petitioner in the event of promotion to the post of Selection Grade Constable and thereafter to the post of Head Constable w.e.f. December, 1995 and December, 2000 be also given all the pecuniary benefits that accrue to the petitioner in wake of such promotion(s). The respondents in any case shall take a decision in the matter within three months from the date copy of the order is made available to the respondents, so that the petitioner is not pushed to a realm of uncertainty and has an opportunity to work out his remedy in wake of the decision taken by the respondents. Disposed of.