Ilyas Ali vs State and Ors.

Order No. 274/2002 dated 14.08.2002, is called in question, in this petition.

Petitioner was selected and appointed as constable in J&K Police Department in District Police (Executive) Kargil in special on spot recruitment

drive on 28th August 2000 along with many other candidates vide PHQ selection letter No.Onspot/3419193 dated 01.09.2000. The formal

appointment order could not be issued in favour of the petitioner as he was found to be over age. Matter was taken up with the competent

authority and sanction was accorded for relaxation of upper age limit and two years seven months and twenty five days in favour of petitioner as on

1st Jan. 2000. The petitioner was, accordingly, appointed as constable in the pay scale of 2750703800754400 vide order dated 22nd March

2001. The petitioner was deputed to Police Training School (PTS) Manigam to undergo nine months Basic Recruitment Training Course (BRTC)

and was accordingly relieved from the office of the Superintendent of Police District Kargil on 29th March 2001. The petitioner was reverted back

to Kargil for his unauthorized absence from duty from 26th April 2001 by Pr. PTS Manigam vide order dated 15th May 2001. The petitioner/

constable reported in the District Police Lines (DPL) Kargil on 18th June 2001 after unauthorized absence of fifty three days. The petitioner was

allowed to join DPL Kargil to facilitate conducting of the departmental enquiry. The petitioner again absented himself on the dates shown below:

04.08.2001 to 07.08.2001

08.08.2001 to 15.08.2001

28.08.2001 to 10.09.2001

06.10.2001 to 23.11.2001

25.11.2001 to till date.

Notice was issued to petitioner informing him to resume his duties and to facilitate conducting of the enquiry. The enquiry, however, could not be

conducted and concluded. It appears, the enquiry has not been conducted because of unauthorized absence of the petitioner from duty.

After considering all these aspects in the matter the petitioner's probation was ordered to be terminated in accordance with the mandate of Rules

of 187 of Jammu and Kashmir Police Rules, I960, (for short rules of 1960), it is this order which is called in question in this petition.

On notice, respondents have filed reply affidavit/objections in which the factual details given in the impugned order have been reiterated and it is

said that the order impugned in this petition is legal and valid.

Heard Id counsel for parties. Considered the matter.

Ld. Counsel for the petitioner submitted, that the petitioner fell ill at Srinagar when he was reverted back to parent district but he could not

immediately reach there as the road was closed. The Id counsel further submitted that petitioner did not deliberately or intentionally absented from

his duty. It is further submitted that after reporting back to DPL Kargil he again fell ill and did not absent himself from duties deliberately.

Ld. Counsel also referred to and relied upon the judgment of Supreme Court reported in AIR 1964 SC 443, 2000(2) Supreme 259 and

judgment of this court reported in 2005 (SLJ) 375, and submitted that the impugned order has stigmized the petitioner and it is not the order of

discharge simplicitor. It is further submitted by Id counsel for petitioner that as no enquiry has been conducted and no opportunity of hearing was

granted to the petitioner, the order is rendered illegal.

Mr. N. H. Shah, Dy AG, appearing for the respondents Invited the attention of the court to Rule 187 of the Rules of 1960, and submitted that in

view of the fact situation obtaining in this case, there was no option but to terminate the probation of petitioner and discharge him or service as he

was not likely to prove a good police official. Ld counsel further submitted, that there was no requirement of putting petitioner on notice and

conducting of an enquiry as the order impugned in the writ petition is the order of discharge simplicitor and has not stigmized the petitioner. Ld.

Counsel, accordingly, prayed for dismissal of the petition.

True, it is, that a person who seeks appointment in the police organization, the organization which is charged with the duty of maintaining law and

order, dealing with the crime and protecting the life and liberty of citizens of the State, has to prove a good official/officer while being put on

probation after his appointment. A person who is appointed in the police force cannot be permitted to play pranks with his duties. If police

officer/official while being on probation, is found not fit to prove a good police officer on the basis of his performance which precedes the passing

of the discharge order, the competent authority has power to terminate the probation and discharge the official/officer from his services, in

accordance with mandate of Rule 187 of the Rules of 1960. Rule 187 of the Rules 1960, is reproduced as under:

Discharge of inefficient

A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of

enrolment.

Perusal of the rule reveals that a constable when found unlikely to prove an efficient police official may be discharged by the Superintendent at any

time within enrolment of three years. The said power is a drastic power which has the potential of throwing out the police constable from the

services without conducting enquiry. This rule, thus, requires to be construed strictly, lest it is misused by the authorities. The more absolute power

conferred by rule on authority, the more serious duty is cast on the said authority to be more responsible in dealing with the official in accordance

with the said rule. The rule casts serious duty for exercise of power with utmost care and caution as the said rule has the potential of depriving a

police constable of his services without conducting an enquiry.

A government servant has constitutional protections available to him as enshrined in Article 311 of Constitution of India read with Section 126

of Constitution of Jammu and Kashmir. A person appointed to services in terms of the relevant rules is put on probation so as to adjudge his

capacities and to find out whether he is likely to prove an efficient official. The probationer unless his probation is confirmed does not become

member of the services and it is how the protections guaranteed under Article 311 of the Constitution of India read with Section 126 of

Constitution of Jammu and Kashmir may not be available to the probationer. However, when a probationer is discharged from services and the

foundation for such discharge, is, his, alleged misconduct or any act, which would have potential of stigmizing the said officer, in such circumstances

the order of discharge from services will not be an order discharge from services simplicitor but would be punitive in nature and consequences

would be dismissal of official from services. In such cases, what becomes necessary to ascertain is as to whether, the order of discharge in really

an order of discharge simplicitor or the foundation thereof has been the alleged misconduct of the official.

The petitioner was selected as constable in an on spot recruitment drive. In order to appoint him in police service government accorded

sanction for relaxation of upper age limit in his case. The petitioner was ordered to under go nine months BRTC course at PTS Manigam. After

joining the PTS Manigam, the petitioner absented and was reverted back to DPL Kargil where he reported on 18th June 2001. The impugned

order reveals that the petitioner was allowed to join in DPL Kargil for facing departmental enquiry. The period of his unauthorized absence from

services has also been listed in the impugned order. The Superintendent Police District Kargil after giving all the details about the conduct of

petitioner in the impugned order recorded a finding, the relevant part of which is reproduced as under:

......On the above grounds it can be presumed that constable is not willing to serve in the police department and also he will not proven to be a

responsible police personnel...

The respondent No. 4 in terms of Rule 187 was duty bound to record a finding that the petitioner was likely to prove inefficient police official.

The respondent No. 4 has after referring to the conduct of petitioner stated that it can be presumed constable is not willing to serve the department

and will not prove to be a responsible person.

The basis for passing the impugned order, has thus, two limbs, one that petitioner is not willing to serve in the department, and second that he

will not prove to be a responsible person. If an employee is stated to be not willing to serve the organization, this certainly will come in his way to

secure employment some where else as has the effect of declaring him a non serious person, consequently stigmizing him, unless such a finding is

recorded on the basis of enquiry conducted in accordance with law, declaring official not willing to serve the department cannot be said to an

innocuous allegations leveled against official, such a finding can be recorded only by conducting the enquiry. Declaring an official not willing to

serve the department certainly stigmizes the official as this casts a serious reflection on his whole personality and will have adverse effect to deprive

the official to seek employment else where. When such a finding becomes basis for passing of order of discharge same does not remain an order of

discharge simplicitor merely, but the order becomes punitive in nature. In terms of Rule 187 of Rules of 1960, the Superintendent has to record a

finding that the official is unlikely to prove efficient police officer. No such finding is recorded in this case. What is stated, is that, he will not prove

to be a responsible person. There is certainly difference between expression ""efficient and responsible"". Petitioner may be inefficient in one service

but he can prove efficient for other services, but when the order is passed on the ground that he will not prove to be a responsible person, it casts

aspersions on official as he is declared irresponsible. Holding the petitioner to be not a responsible person has also stigmized him.

The impugned order in these circumstances is held to stigmize the petitioner and is punitive in character, such order could not be passed unless

after conducting enquiry and putting the petitioner on notice. Neither any enquiry has been conducted not the petitioner has been put on notice.

For the above stated reasons this petition succeeds and is allowed. By issuance of writ of certiorari, impugned order No. 247of 2002 dated

14.08.2002, is quashed.

The quashment of the impugned order shall not prevent the respondents to initiate an enquiry against the petitioner, if so advised. The

intervening period will be also decided by the authorities in accordance with the Rules of 1960.