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2015 DIGILAW 531 (JK)

Sabzar Ahmad v. State of J&K

2015-10-05

MUZAFFAR HUSSAIN ATTAR

body2015
ORDER : Muzaffar Hussain Attar, J. 1. The petitioner was posted as Division Officer, Qamarwari on 29th November, 2010. He along with his escort party was performing Naka duty at Qamarwari Chowk on the said date. Three militants carrying small weapons and 3 grenades fired upon the said police party, resulting in on spot death of Senior Grade Constable, Mohammad Ashraf No. 1653/S. One of the militants tried to snatch the service rifle of the deceased constable. The petitioner and his PSO's showed presence of mind and retaliated with their weapons which resulted in death of all the three militants on spot. These facts are reflected in the communication dated 29th November, 2010 send by Dy. Inspector General of Police, CKR, Srinagar to Director General of Police J&K Jammu. The Dy. Inspector General of Police, in the communication, stated that the act of the petitioner and his other police personal was specific and exemplary action. It is also informed in the said communication that action by the police party saved many civilian lives at Qamarwari, otherwise a busy market area. Recommendations were made for grant of out of promotion in favour of three constables and one head constable to next higher rank. In respect of petitioner also recommendation was made for his out of turn promotion to the rank of Inspector. Recommendations were made to the PEB. Request was made for sanction of cash award of Rupees five lacs in favour of SSP Srinagar for its further distribution among the police party. 2. Three constables and head constable were given out of turn promotion to the next higher rank. The claim of the petitioner for grant of out of turn promotion to the rank of Inspector was rejected vide order dated 13th August, 2012. The recommendation made in favour of the petitioner for grant of out of turn promotion to the grade of Inspector was rejected on the ground that there was not direct role of the petitioner in neutralizing the militants who had martyred the police constable. This order was challenged by the petitioner in SWP No. 797/2012, which writ petition was disposed of by this Court vide Judgment dated 31st October, 2013. This order was challenged by the petitioner in SWP No. 797/2012, which writ petition was disposed of by this Court vide Judgment dated 31st October, 2013. The relevant portion of the Judgment is taken note of: "Respondents considered and rejected the case of the petitioner by holding that petitioner was only entitled to cash award and the rejection is made on the ground that he has not taken direct role in the killing of three militants. It is apt to reproduce relevant part of the consideration order herein, thus: "Whereas, the PEB after having verified role of the petitioner in the said operation, had found him entitled for cash reward of Rs. 1 lakh commensurate to his performance in the said operation which was accordingly sanctioned by the PHQ vide Order No. 3750 of 2010 dated 30-11-2010. Accordingly, to the spot verification, there was not direct role of the petitioner in neutralizing the militants who had martyred the police constable, as it was the police party on spot, which had killed the three militants. His role being In-charge of the Police Post wherefrom the party was deployed at the said naka, he was considered by the PEB for award of cash reward otherwise there was no direct contribution on the part of the SI in the said operation which would deserve him to be promoted out-of-turn promotion." This is how the promotion out of turn has been declined to the petitioner. Heard and considered. The Senior Superintendent of Police was the immediate officer who was better placed to reflect the part played by all the five officials and made recommendation. In the same way, Inspector General of Police also visited the spot and had seen the party played by the police officials. One does not understand as to how the consideration order was passed and how it was established that petitioner had not played a direct role in the militant offensive. The consideration order is in contradiction to the reports and recommendations made by the Police Officers of different ranks. Thus the respondents are blowing hot and cold. A case of similar nature titled Mohammad Aftab Mir v. State of J&K and others was pending before this Court which was dismissed by this Court and the dismissal was upheld by the Division Bench also. Thus the respondents are blowing hot and cold. A case of similar nature titled Mohammad Aftab Mir v. State of J&K and others was pending before this Court which was dismissed by this Court and the dismissal was upheld by the Division Bench also. The matter thereafter landed in the Apex Court and the Apex Court has directed for reconsideration of the matter while taking note of the recommendations made by the immediate officers in favour of the petitioner. The said Judgment is reported as 2011 AIR SCW 2149. Having regard to above discussion, the impugned order is held to be bad, therefore, quashed and respondents are directed to reconsider the case of the petitioner in light of the recommendations/communications made in his favour by the SSP, DIG and IGP, with retrospective effect. Respondents shall complete the exercise within a period of three months from the date copy of the order is served upon them. Disposed of along with all CMPs." 3. The impugned order was quashed and respondents were directed to reconsider the case of the petitioner in light of the recommendations/communications made in his favour by the SSP, DIG and IGP. It was directed that the petitioner's claim for his out of turn promotion to the rank of Inspector has to be given retrospective effect as in the meantime he was promoted to rank of Inspector in his own right. 4. The respondent (Director General of Police) vide order No. 03/2015 dated 13th February, 2015 again rejected the claim of the petitioner for grant of out of turn promotion on the same ground on which the earlier order was passed which stood quashed by the Court, viz that he had no direct role in killing of the militants. 5. It is this order which is called in question in the writ petition. 6. The Judgment dated 31st October, 2013 passed in SWP No. 2102/2012 has attained finality and binds the parties. It is this decision of the Court which was to be implemented and same had to determine the fate of the petitioner for grant of out of turn promotion to the rank of Inspector. 7. Learned counsel for the petitioner while arguing the case submitted that the respondents have not passed the order in accordance with the mandate contained in the Judgment of the Court passed in SWP No, 2102/2012. 7. Learned counsel for the petitioner while arguing the case submitted that the respondents have not passed the order in accordance with the mandate contained in the Judgment of the Court passed in SWP No, 2102/2012. Learned counsel submitted that the same ground has been reiterated in the impugned order in rejecting the claim of the petitioner which was taken in the earlier order which has been quashed by the Court in the earlier writ petition. Learned counsel submitted that this writ petition is to be allowed. 8. Mr. B.A. Dar, learned AAG, with his usual vehemence argued the case and defended the action of respondents in rejecting the claim of the petitioner for grant of out of turn promotion to the rank of Inspector. 9. Learned counsel referred extensively to the grounds urged in the impugned rejection order as also in the pleadings of the reply affidavit. Learned counsel submitted that there was no consistency displayed by the petitioner in dealing with the militants. It was further submitted that his role in dealing with the militants was confined to only one incident, whereas one Arshid Hussain was granted out of turn promotion as he had also participated in the action at Lal-Chowk, Srinagar in which two militants were killed. Learned counsel submitted that the claim of the petitioner has been considered on the touch stone of the policy framed by the Government for giving out of turn promotion to the police personal. Learned counsel submitted that on the basis of the above factual narration the claim of the petitioner for grant of out of turn promotion has been rightly rejected and prayed for dismissal of the writ petition. 10. The parties in this case are strictly governed by the Judgment of the Court dated 31st October, 2013. The Court after quashing the earlier rejection order, directed the respondents to re-consider the case of the petitioner in the light of the recommendations/communications made in his favour by SSP, DIG and IGP. The claim of the petitioner was to be considered for giving retrospective effect to his promotion. The respondents had to implement the judgment and could not travel beyond the contours of lane. They were duty bound to strictly comply with the directions given by the Court. The claim of the petitioner was to be considered for giving retrospective effect to his promotion. The respondents had to implement the judgment and could not travel beyond the contours of lane. They were duty bound to strictly comply with the directions given by the Court. This was the only mode to be adopted by the respondents in re-considering the claim of the petitioner for grant of out of turn promotion. 11. The respondents in the impugned order have not considered the recommendations of the SSP, DIG and IGP. Nothing is said about these recommendations and no reason is recorded in respect of the factual assertions made in these recommendations. 12. The respondents could not adjudge the claim of the petitioner for grant of out of turn promotion on any other basis other than the mandate provided in the order of the Court. 13. As already stated the Director General of Police in his communication dated 29th November, 2010 has stated as under: "On this, Divisional Officer, Qamarwari as well as his PSO's showed presence of mind and swiftly retaliated with their weapons and killed all the three militants on spot. Their's was specific and exemplary gallant action. The targeted action by the police party saved many civilian lives as Qamarwari is a busy market area." In the order impugned in this petition, the claim that petitioner has no direct role in killing the militants is not supported by the recommendations/communications of ground level officers. The ground level officers have specifically indicated in their communications about the direct role played by the petitioner in killing the militants. These communications had to become basis for grant of out of turn promotion to the petitioner. The respondents have violated the earlier Court Judgment. Any order passed by the Executive Authority of the state in violation of Court Orders/Judgments is void ab initio and nullity in law. The Division Bench of this Court in case titled Abdul Qayoom v. M.A. Chesti & Ors reported in 2010 (II) SLJ 707 has ruled as under: 16. "The People of this country have given to themselves the Constitution, which Constitution in its legal and philosophical scheme has clearly and specifically delineated the frontiers of three important organs of the State viz, executive, legislature and judiciary. "The People of this country have given to themselves the Constitution, which Constitution in its legal and philosophical scheme has clearly and specifically delineated the frontiers of three important organs of the State viz, executive, legislature and judiciary. Every organ of the State is charged with definite duty by and under the Constitution, and every organ is duty bound to obediently and faithfully follow the mandate of the Constitution to secure the purpose and goals underlying Constitution. 17. The judiciary in the three organs of the State with the advancement of time has assumed perceptible importance in the affairs of State. This organ of the State is charged with sacred duty to preserve and protect the basic structure and basic features of the Constitution. The institution of judiciary is performing delicate duty of doing the balancing act between different organs of the State. Our constitution on the one side is loaded with fundamental rights available to an individual and on the other side is founded on the bed-rock of achieving the goals of maintaining and preserving the rule of law. The arbitrary, malafide and unjust exercise of power by Executive organ of the State is frowned upon by constitutional courts and such actions are struck down in exercise of its Constitutional powers. Our Constitution has made our country sovereign, democratic and republic State and any assault by any authority to undermine the basic features of the Constitution are to be repelled with full vigor and complete force. 18. The three organs of the State, being principal pillars of our democratic set up have to respect each other by working within defined boundaries. Any effort to transcend the Constitutional barriers will have the affect of destroying the basic structure of the Constitution and the mutual collision may result in subverting the very Constitution itself. The three organs of the state are thus, duty bound to exhibit extreme caution, care and restraint in the exercise of their power and authority. The three organs of the State in our constitutional scheme cannot afford to tread the path of collision as consequences thereof can be catastrophic. The executive is duty bound to follow the directions, orders and judgments of the court of law. Any streak of Executive authority's defiance may usher the state into an anarchical situation. 19. The three organs of the State in our constitutional scheme cannot afford to tread the path of collision as consequences thereof can be catastrophic. The executive is duty bound to follow the directions, orders and judgments of the court of law. Any streak of Executive authority's defiance may usher the state into an anarchical situation. 19. Considering the case in hand on the basis of the above stated position emerging from our constitutional scheme it becomes writ large on the face of the record that the executive has transgressed its limits by bringing to naught judgment passed in SWP No. 1491/89 which had attained finality for the reason the LPA as also SLP filed against the said judgment were dismissed. In the said judgment, the ld. Single Judge, recorded a finding of fact that the appellant possessed the requisite eligibility for being considered and promoted to the post of Assistant Engineer (Agri). The order No. 274-FST of 1989 dated 15.09.1989 was considered and relied upon in arriving at a particular judicial decision. In our constitutional scheme, the executive wing of the State has neither power nor authority to undo the consequences flowing from said judgment by issuance of executive orders. The judgment of the Constitutional Court which has attained finality cannot be allowed to be defeated by the government in exercise of its executive power. The executive power of the State cannot be conceived to possess the potential to defeat the judgment rendered by the Constitutional Court. Any such effort, if permitted, would be pregnant with the consequences which would shake the very foundations of the Constitution. The Constitutional courts have the power to review administrative action of the Executive Government and this power of judicial review is part of the basic structure of the Constitution. The executive Government does not have power to defeat the judgment of the Constitutional Courts by issuance of executive orders. Such effort, if permitted, would have the dangerous potential of rendering one important organ of the State viz judiciary a futile institution and the State cannot claim to be democratic State. This cannot be said to be intendment of the constitution makers. The executive government is duty bound to follow the judgment as the Judgment of a court of law binds all the parties thereto. 20. .... 21. This cannot be said to be intendment of the constitution makers. The executive government is duty bound to follow the judgment as the Judgment of a court of law binds all the parties thereto. 20. .... 21. The Hon'ble Supreme Court in case titled M.C Mehta petitioner v. U.O.I respondents at paragraph 47 (2) reported in 2002 SCC IV 356 has ruled that in our constitutional set up the orders and directions of the court cannot be nullified, modified or in any way altered by any administrative decision of the Centre or State government, relevant part therein is reproduced as under:-- (2). IA of the Union of India for extension of time to run diesel buses is dismissed with costs of Rs. 20,000 (twenty thousand only). It is made clear, and it is obvious in our constitutional set-up, that orders and directions of this Court cannot be nullified or modified or in any way altered by any administrative decision of the central or the State Governments. The administrative decision to continue to ply diesel buses is, therefore, clearly in violation of this Court's orders." 22. .... 23. .... 24. The Hon'ble Supreme Court in case titled Authorized officer (Land Reforms) appellant v. M.M. Krishamurthy Chetty respondent reported in 1998 (9) SCC 138 has held that even orders which may not be strictly legal are binding between the parties, if they are not challenged before the court. Para 2 of the said judgment is reproduced as under:-- "According to the appellant once the judgment on the basis of which the High Court had directed to dispose of the dispute relating to the excess land had been reversed by this Court, the authorized Officer was justified in following the judgment of this Court instead of the judgment of the High Court. It need not be pointed out that the order passed by the High Court attained finality as it was not challenged before the Supreme Court. The order passed by the High Court directing the Authorised Officer to examine the dispute in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer became final although the judgment on which the grievance had to be examined itself was reversed later by this Court. We find no fault with the reasoning of the High Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior courts. In the result the appeal fails and it is dismissed. No costs." 14. For the above stated reasons this writ petition is disposed of in the following manner. 15. By issuance of writ of certiorari Order No. 386/2015 dated 13th February, 2015 passed by respondent No. 2 is quashed. 16. By issuance of writ of mandamus the respondents more particularly respondent No. 2 is directed to consider and give out of turn promotion to the petitioner to the rank of Inspector retrospectively, inasmuch as, he has already been promoted to the rank of Inspector in his own right. The petitioner shall be considered for further promotion also in accordance with rules. The respondents 1 and 2 to issue necessary orders in this behalf within four weeks from the date copy of this order is served. Disposed off