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2023 DIGILAW 178 (JK)

Kuldeep Kumar v. UT of J&K

2023-05-09

PUNEET GUPTA

body2023
JUDGMENT : 1. The petition is not admitted to hearing so far. The same is taken up for final consideration with the consent of the counsels for both the sides. 2. The petitioners herein, who were working as SPOs with the respondents, were disengaged from the date of registration of FIR No. 62/2010 registered with Police Station, Doda under Sections 458/376/382 RPC. The petitioners were alleged to have committed rape upon the prosecutrix and also committed theft of ornaments of the prosecutrix after entering into the house of the prosecutrix. It is submitted in the petition that Lekh Raj who was constable at the time of registration of the FIR was also the accused along with the petitioners in the aforesaid FIR has been reinstated by the respondents after the challan was dismissed presented in the aforesaid FIR. 3. The petitioners have challenged the disengagement order passed by the respondent No. 4 on the ground that the order impugned was passed without observing principle of natural justice as the petitioners were not granted prior hearing before passing the impugned order. No show cause notice was issued to the petitioners before passing the order impugned. It is also submitted that the petitioners and Lekh Raj stand acquitted in the criminal case registered against them and further that Lekh Raj has since been reinstated but the respondents are not willing to reinstate the petitioners though their case is at par with the said Lekh Raj. 4. The petitioners seek quashment of order of disengagement and further seek relief of their re-engagement as Constable in view of the Government orders passed by the respondents from time to time. 5. The respondents have filed objections to the petition, wherein the factual aspects of the case are not disputed. The stand taken by the respondents is that as the petitioners have breached the trust and conduct of disciplinary force and the FIR stands registered against them, they cannot be considered for regularization in the department. 6. Heard learned counsel for the petitioners and learned Senior Additional Advocate General for the respondents. 7. The stand taken by the respondents is that as the petitioners have breached the trust and conduct of disciplinary force and the FIR stands registered against them, they cannot be considered for regularization in the department. 6. Heard learned counsel for the petitioners and learned Senior Additional Advocate General for the respondents. 7. The petitioners herein and Lekh Raj who was constable when the FIR came to be lodged against all the three accused stand acquitted by the court of learned Additional Sessions Judge, Doda in the FIR No. 62/2010 vide judgment dated 30.12.2020 on the ground that the evidence of the witnesses is filled with discrepancies, contradictions and improbable version. It may be noticed herein that though the order of disengagement of the petitioners was passed on 22.03.2010, the respondents did not challenge the same for a decade as it appears that they waited for the outcome of the challan which was produced against them in FIR No. 62/2010. 8. As the petitioners failed to approach the court against the order of disengagement passed in the year 2010 for a decade it shows that the petitioners had no grievance as such of their disengagement order passed by the respondents. Therefore, they cannot challenge the order impugned in the present petition on the ground that no Show Cause Notice was issued to them though the same should have been issued before disengaging them as SPOs. 9. The learned counsel for the petitioners has filed the photocopy of judgment passed by this Court in SWP No. 1998/2006 titled 'Pishori Lal & Anr. v. State of Jammu and Kashmir & Ors.' decided on 10.09.2007, taken on record, in support of his contention that the SPOs cannot be inflicted a major punishment like removal from the service without conducting enquiry in terms of Police Act, 1983 (1927 A.D). The court is of the view that this judgment does not come to aid the petitioners for the reason that the petitioners have challenged their disengagement from the police department after a decade meaning thereby that they had no grievance as such of their removal by virtue of order impugned in the writ petition. 10. The next relief sought for regularization as constable by the petitioners is on the ground that the Government orders bearing No. GB/N-27/2007-II/0357-67, dated 02.03.2013 and Order No. Home/PB-III/62/G/2008, dated 25.09.2009, passed by the Home Department, Govt. 10. The next relief sought for regularization as constable by the petitioners is on the ground that the Government orders bearing No. GB/N-27/2007-II/0357-67, dated 02.03.2013 and Order No. Home/PB-III/62/G/2008, dated 25.09.2009, passed by the Home Department, Govt. of J&K entitle the petitioners to be regularized as Constable because of the act of bravery shown by them when they were working as SPOs. 11. The respondents have taken the stand that the petitioners have tainted their image because of the registration of the FIR and, therefore, cannot be otherwise considered for regularization as Constable. Learned Senior Additional Advocate General has submitted that the acquittal by itself does not entitle the petitioners for reinstatement in the Police Department not to speak of claim for regularization as constable. Admittedly, the petitioners have remained disengaged from the year 2010 till date meaning thereby that there is no continuity of their engagement as SPOs after 2010 whatever may be the reason. 12. The petitioners have not even mentioned in the petition as to when they were initially engaged as SPOs and, therefore, they are entitled to be considered for regularization as constable. 13. The very first condition in the Government orders pertains to the minimum period of the engagement as three years as SPOs in addition to other qualifications set out in the Government orders before the SPOs could be considered for absorption as Constable in the police department. The conditions laid down in the Government orders on which the petitioners bank upon, therefore, cannot apply to the petitioners. It is also seen from the Government Order dated 02.03.2013 that the age limit for absorption in any case is 37 years and the petitioners have crossed the age bar as is evident from the caption of the writ petition itself. So on that count also the petitioners cannot claim any relief of their engagement as Constable with the respondents. 14. Last but not the least, the petitioners have sought their re-engagement in the police department on the basis of parity with Lekh Raj, who the petitioners submit has been reinstated in the police department as Constable, who was working in that capacity when the FIR No. 62/2010 came to be registered against the petitioners as well as the said Lekh Raj. 15. The petitioners have not placed on record any document whereby the said Lekh Raj has been reinstated. 15. The petitioners have not placed on record any document whereby the said Lekh Raj has been reinstated. What weighed with the respondents to reinstate the said Lekh Raj is not made known to the court. The petitioners cannot seek parity with Lekh Raj as the engagement of the petitioners herein was not permanent one whereas as per the assertion of the petitioners the said Lekh Raj was permanent employee of the department as he was working as Constable when the FIR came to be lodged against him in which he was also acquitted along with the petitioners herein. The petitioners cannot seek re-engagement as SPOs or regularization as Constable only on the strength of their being acquitted in a criminal case. This is what has been laid down by the Hon'ble Apex Court in case titled 'Imtiyaz Ahmad Malla v. The State of Jammu and Kashmir & Ors.' reported in AIR 2023 SC 1308 . It was held in this authority that it is for the employer to consider the antecedents of the person and examine if he is suitable for appointment to the post. 16. There can be no second opinion that the integrity and the conduct of the person who seeks employment in a police department which is for the protection of the Society at large has to be impeccable and beyond question. 17. In the light of the above, the Court finds no merit in the present petition. The petition is, accordingly, dismissed. As the petitioners claim in the writ petition that they have also filed representation for their re-engagement with the Police Department after their acquittal in the FIR in question and no specific order has been passed on the said representation but the respondents are not ready to take the petitioners back into service, the respondents are at liberty to consider the case of the petitioners qua their representation irrespective of dismissal of the writ petition.