Gh. Nabi Parray vs State and Others

Mansoor Ahmad Mir, J.—Petitioner came to be appointed as a Constable in the year 1978 and was promoted as Special Grade

Constable. He has successfully undergone the training course at Police Training College, Udhampur. He was awarded Commendation Certificate

Class III along with cash reward vide Order No. 971 of, 1993 dated 19.11.1993 (annexure 'B'). He was also awarded cash reward vide Order

No. 6 of 1994 dated 15.2.1994 by the Superintendent of Police, Special Branch, Kashmir (annexure 'C'). It is contended that surprisingly and

unfortunately the then S.S.P. (CID) recorded the following adverse remarks against the Petitioner in his Service Book on 31.1.1996.

His long tenure in S.B. Budgam has been uneventful. All efforts to utilize him properly during the last 6 years did not bear fruit, being recommended

for transfer out of CID.

The said remarks were not communicated to the Petitioner. He has questioned the same and has prayed that the same be quashed and he be

given all the service benefits to which he is entitled to, on the grounds taken in the writ petition.

It is contended that the then S.S.P. (CID), Special Branch, Srinagar was not posted as such from 1992 to 1995, during which period the said

remarks were recorded against the Petitioner and, therefore, he was not competent to record same for the said period. Further it is contended that

the Petitioner has earned cash rewards, commendation certificates in the year 1993, 1994, 1996 and 1997. Dy.S.P. (CID), Special Branch,

Srinagar on 10.11.1997 has recorded excellent remarks in favour of Petitioner in his Service Book containing annexure 'D', which reads as:

SGCt Gh. Nabi No.686/CID during his posting in Budgam Section of CID has been instrumental in gathering valuable information as far as SB job

is concerned. He would, on occasions, put his life in great risk, but would not come empty handed. His performance during the period June 97 to

Nov. 97 remained excellent.

The then S.S.P. (CID), Special Branch, Kashmir, who was manning the post in the year 1996, vide Order No. 167 of 1996 dated 4.10.1996

also-awarded Commendation Certificate Class III with cash reward in favour of Petitioner for the services which he has rendered during Assembly

Elections (annexure 'E').

When Respondents vide Order No. 624 of 1997 dated 16.12.1997 made promotions and Petitioner was not figuring in the said list, he came to

know about the said impugned remarks.

The Petitioner has questioned the adverse remarks and non-inclusion of his name in the promotion list on the ground that the then S.S.P. (CID),

Special Branch, Kashmir was not competent to record the adverse remarks because he was not posted as such during the years 1992 to 1995.

The said remarks were not conveyed to the Petitioner and he came to know when promotion orders came to be issued on 16.12.1997. The

Petitioner made representations (annexure 'G', 'H'& 'K') for redressal of his grievances, but the Respondents have not decided the same,

constrained him to invoke the jurisdiction of this Court for quashing the said adverse remarks and commanding upon the Respondents to give him

the effect of promotion as Head Constable right from 16.12.1997 and accordingly fix his seniority.

Respondents have filed the objections. They have not denied the fact that the then S.S.P. (CID), Special Branch, Kashmir, who had recorded

remarks against the Petitioner, was not posted as such during 1992 to 1995. It is apt to reproduce para 7(a) of the writ petition herein:

That the impugned remarks dt. 31.1.1996 are bad in the eye of law, because the same had been passed by the said Police Officer out of his

personal grudge baseless as already said. The said S.S.P. Mr. Farooq Ahmad was not S.P. Special Branch Kashmir Srinagar from 1992 to 1995,

how can he pass remarks against the Petitioner saying that ""all efforts to utilize him properly during the last 6 yrs did not bear fruit."" This clearly

shows that the said remarks have been passed without application of mind for extraneous considerations. As such the impugned remarks dated

31.1.1996 deserved to be quashed.

It is also apt to reproduce relevant portion of para-8 of the reply herein:

Further the contention of the Petitioner that Farooq Ahmed was not S.P. CID Special Branch between 1992-95 is totally incorrect and misleading,

when said Farooq Ahmed SSP had remained posted as S.P. CID SBK w.e.f. 22.05.89 to 03.09.1991 and again from 15.04.94 to 07.12.1996.

Said Farooq Ahmed had remained posted as S.S.P. (CID) with effect from 22.5.1989 to 3.9.1991 and again from 15.4.1994 to 7.12.1996.

Thus it is admitted fact that the said officer was not manning the post from 4.9.1991 till 14.4.1994. Then how he recorded the remarks against the

Petitioner for the said period is not forthcoming.

The Respondents also have not denied the fact of awarding cash reward and commendation certificates in favour of Petitioner relating to the

years 1993, 1994, 1996 and 1997. Then how the SSP concerned has recorded the impugned remarks against the Petitioner, which run contrary

to annexure 'B', 'C & 'E'. It is not the case of Petitioner that the adverse remarks were conveyed to him, thus came to be condemned unheard. It

was obligatory on the part of Respondents to convey the said adverse remarks to the Petitioner and hear him before denying the grant of

promotion.

Respondents have admitted that Sh. Farooq Ahmed was manning the post as S.S.P. (CID), Special Branch, Kashmir with effect from

15.4.1994 to 7.12.1996. Thus it can be safely said and held that the impugned adverse remarks came to be recorded by him on 31.1.1996 and

cash reward and Commendation Certificate, containing annexure 'E', also came to be awarded and sanctioned in favour of Petitioner by the said

SSP. In the given circumstances the said adverse remarks run contrary to the cash reward and certificate granted in favour of Petitioner by the

same authority/SSP. Thus it can be safely held that consideration came to be wrongly made, which resulted in preparing and making promotion

order dated 16.12.1997 (annexure 'F').

It is also apt to mention herein that the Respondents have not taken into consideration the entire entries made in the Service Book of Petitioner

and the fact that Dy.S.P. (CID) and S.S.P. (CID) have recorded excellent remarks in favour of Petitioner for the period June 1997 to November

1997 and also granted Commendation Certificate and cash reward. Had Respondents taken into consideration the same in view, they would have

considered him for next promotion in terms of the order containing annexure 'F'. Respondents also have not denied the fact that Petitioner made

representations (annexure 'G', 'H' and 'K') right from 1997. Thus the Petitioner sought indulgence of higher authorities within time to hear him and

quash/expunge the adverse remarks, but the Respondents have not considered the same, constrained him to file the writ petition in hand.

It is also worthwhile to mention here that despite of the fact that Respondents were given opportunity from 23.4.2001 to file reply before the

admission stage, they failed to do so and the petition came to be admitted on 19.12.2001. It is apt to reproduce the said order:

Objections have not been filed. Petition is admitted to hearing. Mr. Qadiri to file counter affidavit within four weeks.

A Division Bench of this Court in Bashir Ahmad Bhat v. State of J&K LPA Nos. 138 and 168 of 1999, decided on 03.08.2004 observed

that if the Respondents have failed to raise the plea of delay at the admission stage, they are estopped from raising such plea later on. It is

profitable to reproduce the relevant portion of para-3 of the said judgment herein, which reads as under:

It is also the proposition of law that delay and latches should be considered before admission of the writ petition. The petition has not been

admitted subject to delay and latches, which were not pressed at the time of its admission. Therefore, the writ petition under such circumstances

cannot be dismissed on account of delay and latches.

Single Bench of this Court in Habibullah Dar v. Chairman and Ors. 2005 SLJ 757 and Showkat Ahmad Dar v. State and Ors. SWP No.

1311/2004 decided on 7.6.2006 has also taken the same view.

In the given circumstances the delay cannot come in the way of Petitioner for seeking the relief.

Viewed thus, the writ petition is allowed, impugned adverse remarks are quashed/expunged and the Respondents are directed to consider the

case of Petitioner for grant of promotion from the date he became entitled to the same, particularly when his juniors came to be promoted as such

and accordingly fix his seniority.

Registry to hand over the service record of Petitioner to Mr. Magray against proper receipt.

Disposed of along with all CMPs.