State of Jammu & Kashmir and Others vs Radha Krishan

Hasnain Massodi, J.—Letters Patent Appeal, on hand, is directed against Writ Court judgment dated 12.06.2003 in petition titled Radha

Krishan v. State of J & K & ors., SWP No. 2169/2000, whereby learned Single Judge has allowed the writ petition and directed the respondents

to promote the writ petitioner/respondent as Selection Grade Constable with effect from 01.07.1975 and grant him all consequential benefits as

allowed to his juniors including one Shabir Ahmad No. 520 JKAP IV Battalion. First an overview of background facts. Respondent/writ petitioner

was appointed as Constable in the appellant Police Department in 1971. He was denied promotion while his juniors including Constable, Shabir

Ahmad No. 520 JKAP IV Battalion were given promotion as Selection Grade Constables with effect from 01.07.1975. His repeated

representations did not attract any response for more than one and a half decades. The appellants finally in the year 1999 A.D. constituted a

Special Departmental Promotion Committee (DPC) to accord consideration to the respondent/writ petitioners claim. The Special Departmental

Promotion Committee (DPC) considered respondent/writ petitioners case and placed him in promotion list of 1975 with effect from 01.07.1975

as per DPC Norms of 1975, applied to his juniors. The respondent/writ petitioner was, thereafter, called for interview. He appeared before the

DPC on 14.12.1999 and was declared successful. His case was cleared for promotion with effect from 01.07.1975. However, the appellants did

not act on the recommendation of the DPC, constraining the respondent/writ petitioner to approach the Writ Court with writ petition being SWP

No. 2169/2000.

The Writ Court found merit in the case set up by the respondent/writ petitioner, allowed the petition and passed direction reproduced above in

favour of the respondent/writ petitioner and against appellants/respondents.

The Writ Court judgment dated 12.06.2003 is called in question in the Letters Patent Appeal, on hand, on the ground urged therein.

Heard and considered.

The appellants/respondents question the judgment of learned Single Judge primarily on the ground that they were not afforded opportunity by

the Writ Court to file their reply and deal with the averments made in the writ petition.

The LPA Bench noticing that the name of respondent/writ petitioner was due to a typographical error (later rectified) shown as Tara Krishan

instead of Radha Krishan in the title of the writ petition, allowed the appellants/respondents to file statement of facts/counter, to controvert the

averments made in the petition.

The appellants/respondents filed their Counter Affidavit styled as Supplementary Affidavit on 06.12.2004. They oppose the writ petition on the

grounds that the respondent/writ petitioner has been given promotion and placement due to him with effect from the date he was cleared for

promotion, by the DPC. It is pleaded that till 1980 seniority of Constables was maintained at regimental/unit level and with effect from 25.08.1980

the seniority has been maintained at State level; that the seniority of respondent/writ petitioner was, accordingly, fixed at State level and as per the

seniority he has been considered by the DPC for promotion in the year 1991 and granted promotion with effect from the date he was cleared for

promotion. The respondent/writ petitioners claim for promotion with effect from 1975, according to the appellants is untenable as, such a course,

would prejudicially affect the seniority of a large number of personnel promoted between 1975 and the date respondent/writ petitioner was cleared

for promotion. The writ petition is also opposed on the ground that the respondent/writ petitioner agitated the cause 27 years after it accrued to

him and the writ petition, therefore, suffered from delay and laches. It is insisted that the decision to maintain seniority on the basis of regimental/unit

level and thereafter at the State level, has found approval of the Court in State v. Karan Singh and ors. LPA No. 315/2002 decided on

19.03.2004.

We have gone through the pleadings and the record available on the file and have heard learned counsel for the parties.

Facts, by and large, are not in dispute. It is admitted case of the parties that respondent/writ petitioner was appointed as Constable in J & K

Armed Police in the year 1971; that he was promoted as Selection Grade Constable in the year 1981; that his junior, Constable Shabir Ahmad

No. 520 of JKP 4th Battalion was promoted vide order No. 1064 of 1980 dated 11.12.1980, as officiating Selection Grade Constable in the pay

scale of Rs. 240-6-300-EB-8-340 with effect from 01.07.1975. Respondent/writ petitioner promoted as Selection Grade Constable with effect

from 1981, felt aggrieved with the promotion of his junior as Selection Grade Constable with effect from 1975. He voiced his grievance in a

representation addressed to Inspector General of Police, Armed. The representation was considered and respondent/writ petitioners grievance,

though after a long delay, redressed by appointing Special Departmental Promotion Committee vide Armed Police Head Quarter Order No. 382

of 1999 dated 02.04.1999. The Committee was re-constituted vide order No. 1075 of 1999 dated 26.11.1999.

The Special Departmental Promotion Committee met on 15.12.1999 and accorded consideration to the promotion of respondent/writ

petitioner and one Sudershan Singh No. 304/11th (307/4th) Battalion. The Special Departmental Promotion Committee declared respondent/writ

petitioners successful as he secured 42 against 37 = qualifying marks for promotion. He was, accordingly, recommended for inclusion in list A of

1975 with effect from 01.07.1975 and consequent promotion as Selection Grade Constable from the said date. The respondent/writ petitioners,

however, did not act on the recommendation made by the Special DPC, on the ground that his retrospective promotion was likely to unsettle the

settled seniority position and prejudicially affect other ranks.

Mr. Basotra, learned Senior Additional Advocate General, insists that the respondent/writ petitioner could not claim parity with Constable

Shabir Ahmad No. 520 of JKP 4th Battalion, inasmuch as, respondent/writ-petitioner and Constable-Shabir Ahmad, were borne on two different

battalions of Jammu and Kashmir Armed Police. Mr. Basotra points out that prior to 25.08.1980, seniority of Constables was maintained at

Battalion level and their promotion regulated accordingly; that as Constable-Shabir Ahmad was at a higher place in the seniority list of Constables

in his battalion, his appeal against an order denying him promotion was allowed and order No. 1064 of 1980 dated 11.12.1980, issued in his

favour, promoting him as Selection Grade Constable and as respondent/writ petitioner was not senior in his battalion, he was promoted as

Selection Grade Constable in 1981. Learned counsel states that in compliance of CPO Order No. 599 of 1980 dated 25.08.1980, whereby

seniority of Constables was directed to be maintained at State Level, the Armed Police Range vide Order No. 9 of 1980 prepared a combined

seniority list and the respondent/writ petitioner was promoted as Selection Grade Constable on the basis of said combined seniority list in the year

1981. Mr. Basotra argues that the respondent/writ petitioner in the said background cannot complain of any discrimination or plead that his juniors

were promoted over his head as Selection Grade Constables.

The case set up by the respondents and the arguments advanced by learned Senior Additional Advocate General sound attractive but pale into

insignificance, on a closer look at order No. 1075 of 1999 dated 26.11.1999, whereby Special DPC was reconstituted to accord consideration to

respondent/writ petitioners claim. It would be advantageous to reproduce the order.

Order No. 1075 of 1999

Dated 26.11.1999

In supersession to APHQ Order No. 382 of 1999 dated 02.04.1999, a special departmental promotion committee comprising of following

officers, is hereby constituted to examine and adjudge the service records and suitability/eligibility of Head-Constable Sudershan Singh No. 304-

11th Bn (307/4th) and Radha Krishan No. 128/PAU for their inclusion in promotion list A of 1975 w.e.f. 01.07.1975, as per DPC norms of 1975

applied to their juniors in 1975.

S/Shri

Khalid Durrani Chairman

Comdt. JKAP 5th Bn.

Mushtaq Sadiq Member

Comdt. 4th Bn. Sec.

Joginder Anand, Member

Dy. Comdt. IR-5th Bn.

G.M. Bhat, Member

Dy. SP JKAP 12th Bn.

The Chairman will call the above said officials No. Sudershan Singh No. 304/11th and HC Radha Krishan No. 128/PAU) for requisite test and

furnish the DPC proceedings alongwith relevant documents to APHQ for further necessary action immediately.

Sd/-

(Ashok Bhan)

Inspector General of Police

Armed J & K Jammu

A bare look at the order reproduced in preceding para would reveal that the Special DPC was asked to accord consideration to

respondent/writ petitioners case for his inclusion in promotion list A of 1975 with effect from 01.07.1975, as per DPC norms of 1975 applied to

their juniors in 1975. The appellants case that the respondent/writ petitioner was at a lower place in the seniority list of his battalion on the date the

appellants decided to maintain a Combined seniority list at State Level instead of Battalion level and therefore, not entitled to be promoted as

Selection Grade Constable, in the above background, cannot be accepted.

The contention that respondent/writ petitioner s case is hit by delay and laches also does not sound convincing. There is no substance in the

appellants case that respondent/writ petitioner has come forward after delay of 27 years. The argument would have been available to the

appellants had they not accepted respondent/writ petitioner s claim and decided to constitute a special DPC to consider such claim and the DPC

declared him successful on the touchstone of parameters identified in the Order constituting Special DPC. The cause of action arose in favour of

the respondent/writ petitioner when the appellants decided not to act upon the recommendation made by the Special DPC. The Special DPC as

already stated met on 15.12.1999 and took a decision in favour of the respondent/writ petitioner. The respondent/writ petitioner filed writ petition

on 03.11.2000. The respondent/writ petitioner, therefore, cannot be held guilty of delay and laches in invoking writ jurisdiction of the Court. There

may be substance in the appellants stand that retrospective promotion to the post of Selection Grade Constable and the benefits flowing from such

promotion would unsettle the seniority position and adversely affect seniority of respondent/writ petitioner s colleagues. This can be taken care by

affording those affected an opportunity to project their stand and not by refusing to act on the recommendations made by the Special DPC,

constituted by the appellants. For the reasons discussed, the Letters Patent Appeal is held to be without merit and, therefore, dismissed.