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2022 DIGILAW 41 (JK)

High Court of Jammu and Kashmir v. Duni Chand Sagotra

2022-02-15

MOHAN LAL, SANJEEV KUMAR

body2022
ORDER : 1. By this petition, the petitioner seeks review of judgment dated 09.06.2017 passed by the Division Bench of this Court in SWP No. 1055/2017 titled Duni Chand Sagotra vs. State of Jammu and Kashmir. 2. With a view to appreciate the grounds urged by Mr. Siddiqui, learned AAG, appearing for the review petitioner, it is necessary to notice few material facts. Respondent No. 1 herein [“writ petitioner”] retired as District and Sessions Judge. Having been recruited as Munsiff, the writ petitioner, by dint of his merit and seniority, came to be promoted as Sub-Judge and thereafter, as District and Sessions Judge vide Government Order No. 1326-LD(A) of 2001 dated 28.05.2001. The promotion of the writ petitioner was initially made on ad-hoc basis for a period of three months. The said ad-hoc promotion of the petitioner was extended for a further period of three months vide Government Order No. 2505-LD(A) of 2001 dated 05-10-2001. The writ petitioner was entitled to either regularization of his promotion as District and Sessions Judge or extension in the term of his ad-hoc promotion, but the review petitioner [“High Court”] did not give him extension in view of the writ petitioner's involvement in some criminal case. The other colleagues of the writ petitioner were, however, given extension except Mr. Mohd Nazir Fida. The Respondent-High Court, on finding that the writ petitioner's involvement in the criminal case registered against him was not established and that there was nothing adverse against him, considered his case for his promotion in the year 2007 and vide Government Order No. 1257-LD (A) of 2007 dated 18th April, 2007, promoted the writ petitioner as District and Sessions Judge. The initial promotion of the writ petitioner was ad-hoc, but the same was regularized in terms of Government Order No. 193 dated 09-06-2014 w.e.f. 18-04-2007 i.e. with effect from the date from which he was second time promoted as District and Sessions Judge on ad-hoc basis. It further comes out that by virtue of the same order, the promotion of Mohd Nazir Fida and Ms. Sudesh Warikoo was also regularized, but w.e.f. 10.06.2003 i.e. the date when both these Members of the service were promoted as District and Sessions Judge on ad-hoc basis. It further comes out that by virtue of the same order, the promotion of Mohd Nazir Fida and Ms. Sudesh Warikoo was also regularized, but w.e.f. 10.06.2003 i.e. the date when both these Members of the service were promoted as District and Sessions Judge on ad-hoc basis. Feeling aggrieved of his regularization w.e.f. 18.04.2007 instead of with effect from 28th May, 2001 when was for the first time promoted as District and Sessions Judge on ad-hoc basis, the writ petitioner filed a representation before the respondent-High Court for retrospective promotional benefits and consequent seniority as District and Sessions Judge w.e.f. 28.05.2001. This was considered by the Full Court on the Administrative side and it was found that the petitioner, having been promoted on ad-hoc basis as District in the year 2007, was entitled to regular promotion from the said date i.e. from 18.4.2007 and, therefore, does not satisfy the criteria laid down for grant of selection grade. 3. Feeling aggrieved by the rejection of his representation, the petitioner filed SWP No. 1055/2017 seeking, inter-alia, a writ of certiorari for quashing the communication dated 30.12.2015 by which the representation of the writ petitioner for regularization of his promotion from the retrospective date had been rejected. The petitioner also sought a direction to regularize his promotion as District and Sessions Judge w.e.f. December 2001 to April 2007 and consequently, for grant of selection grade on completion of five years requisite service. 4. The writ petition was opposed by the respondent-High Court, inter-alia, on the ground that though, the writ petitioner was found entitled to ad-hoc promotion in the year 2001 and was also given one extension in his ad-hoc service, yet he could not be continued as District and Sessions Judge on the ground that a police investigation into some serious allegations against him was pending at the relevant point of time. The respondent-High Court, however, admitted that the allegations leveled against the writ petitioner were not found substantiated in the investigation and he was, accordingly, considered and granted promotion in the year 2007. 5. The respondent-High Court, however, admitted that the allegations leveled against the writ petitioner were not found substantiated in the investigation and he was, accordingly, considered and granted promotion in the year 2007. 5. The Division Bench of this Court, after hearing the rival contentions and having taken note of the reply of the High Court, came to the conclusion that since the allegations against the writ petitioner were not found substantiated in the investigation and, therefore, was found entitled to promotion as District and Sessions Judge and, therefore, there was no justification to deny him regularization of his promotion from 2001. The writ petition was, accordingly, allowed vide judgment dated 09.06.2017 and a direction was issued to the respondent-High Court to regularize the promotion of the petitioner as District w.e.f. December 2001 to April 2007 with a further direction to award all the consequential benefits. It is this judgment which is sought to be reviewed by the respondent-High Court. 6. Mr. Siddiqui, learned counsel appearing for the High Court has sought the review of the aforesaid judgment primarily on the ground that Division Bench which passed the judgment under review did not admit the petition formally and thus, deprived the High Court of the opportunity to file better reply affidavit. He submits that since the writ petitioner did not work as District and Sessions Judge from December, 2001 till 18.04.2007 and, therefore, he was not entitled to be regularized retrospectively as District and Sessions Judge from his initial appointment as District and Sessions Judge on ad-hoc basis. He argues that since the writ petitioner was promoted as District and Sessions Judge only on 27.04.2007 and was also regularized from the said date vide order dated 09.06.2014 and, therefore, he was entitled to reckon his seniority from 18.04.2007. He also seeks to explain as to how aforesaid Mohd Nazir Fida and Ms. Sudesh Warikoo had been given promotion from the year 2003 by urging that they had actually worked on the post though, in ad-hoc capacity w.e.f. 10.06.2003 i.e. the date from which aforesaid persons were given regular promotion as District and Sessions Judge. It is further urged by Mr. Siddiqui that the directions as issued by the Division Bench could not have been passed without first issuing a writ of certiorari quashing the decision of the Full Court taken on the representation of the writ petitioner. 7. It is further urged by Mr. Siddiqui that the directions as issued by the Division Bench could not have been passed without first issuing a writ of certiorari quashing the decision of the Full Court taken on the representation of the writ petitioner. 7. Having heard learned counsel for the parties and perused the record, we are of the considered that the review petitioner has not been able to point out any error of law or fact apparent on the face of record and, therefore, this review petition is not maintainable. The argument of Mr. Siddiqui that the writ petition was considered finally without formally admitting the same flies on the face of judgment sought to be reviewed. The judgment begins with the expression “with the consent of learned counsel for the parties, the matter is heard finally.” That being the position, it does not lie in the mouth of the review petitioner to contend that the Division Bench should not have decided the writ petition without formally admitting it and providing further opportunity to it to file counter affidavit. On merits, there is no denying the fact that the writ petitioner was promoted as District and Sessions Judge on ad-hoc basis on 28th May, 2001 initially for a period of three months. He was also given extension for a further period of three months. He was denied further extension only on the ground that there was a criminal investigation in some serious allegations pending against him. As was and is the stand of respondent-High Court that the writ petitioner was exonerated in the aforesaid case and the allegations leveled against him were not substantiated. If that being the admitted position, we see no reason or justification to deny the benefit of retrospective promotion to the writ petitioner. Had there been no enquiry pending against the writ petitioner at the relevant point of time, he would have got his promotion as District and Sessions Judge retrospectively from 28th May, 2001. The writ petitioner, therefore, shall be deemed to be District and Sessions Judge also for the period w.e.f. December 2001 to 18.04.2007. In that view of the matter, the writ petitioner would also be entitled to selection grade on completion of five years of service. 8. The plea of Mr. The writ petitioner, therefore, shall be deemed to be District and Sessions Judge also for the period w.e.f. December 2001 to 18.04.2007. In that view of the matter, the writ petitioner would also be entitled to selection grade on completion of five years of service. 8. The plea of Mr. Siddiqui, that since the writ petitioner has not actually worked against the post of District and Sessions Judge for the aforesaid period and, therefore, his promotion to the said post is required to be reckoned only w.e.f. 18.04.2007, is erroneous and without any substance. 9. Equally, meritless is the contention of Mr. Siddiqui that the Division Bench could not have allowed the writ petitioner and issued the directions for giving retrospective effect to the promotion of the writ petitioner without first formally and specifically quashing the decision of the Full Court taken on the representation of the writ petitioner. We have given thoughtful consideration to this argument of Mr. Siddiqui and find that the Division Bench, with the allowing of the writ petition and issuance of directions for giving retrospective benefit in favour of the writ petitioner, has impliedly quashed the decision of the High Court taken on its Administrative side on the representation of the writ petitioner. The plea taken by the High Court is too technical to be entertained in the review petition. The Division Bench, which decided the writ petition of the writ petitioner, has considered all aspects and has correctly allowed the writ petition. We, having found no error of law and fact apparent on the face of record, are not inclined to entertain this review petition and the same is, accordingly, dismissed.