Karan Singh vs. The State Of Jammu And Kashmir Home Department Through Additional Chief Secretary

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4919-4920 OF 2008

Karan Singh & Ors. .. Appellant(s)

Versus

State of Jammu & Kashmir & Ors. .. Respondent(s)

O R D E R

The present appeals arise from the judgment of the High Court of Jammu and Kashmir dated 19th March, 2004 in which it has upheld an order dated 22nd February, 1993 passed by the Inspector General of Police, Jammu and Kashmir Armed Police, by which a 13 year position between the appellants and the private respondents was disturbed, and the private respondents were granted promotion retrospectively.

The appellants before us were appointed some time in 1971 in the 5th Battalion of the Jammu and Kashmir Armed Police Force. The respondent Nos. 9 to 13 were also appointed between 1970 to 1972 but in the 4th Battalion of the same Police Force. Vide a common seniority list of 1980, the appellants were given various promotions to the Selection Grade of Constable and Head Constable earlier in point of time than the promotions given to the private respondents. This position obtained Digitally signed by USHA Signature Not Verified

RANI BHARDWAJ Date: 2017.07.15 12:53:40 IST Reason:

for 13 years, after which it was corrected by the impugned order dated 22nd February, 1993, which stated thus:

"In view of qualifying of DPC the appellants are due for promotion as Selection Grade Constable w.e.f. 1.7.1975 instead of 12.3.1981 i.e. the their other colleagues were promoted, as such they are hereby promoted retrospectively to the rank of SCCT w.e.f. 1.7.1975. They will figure in the seniority of SGCT as indicated against each:"

Being aggrieved by the aforesaid order, the appellants filed various writ petitions in the High Court which were disposed of by the impugned judgment.

We have heard learned counsel for the parties. Shri Ashok Mathur, learned counsel appearing on behalf the appellants, has brought to our notice Section 5 of the Jammu and Kashmir Police Act, 1983, and the fact that under the promotion order dated 27th February, 1974 as amended by an order dated 30th March, 1974, it was clear that the Police Force as a whole is to be looked into for the purpose of promotion. He argued that nowhere in law could the said retrospective promotions be made so as to disturb the position that obtained for 13 years. Also, the impugned judgment was clearly wrong in recording that on a reading of the 1974 orders, seniority could be determined Battalion-wise and not Force-wise.

On the other hand, the learned counsel for the

State of Jammu and Kashmir has argued before us that the High Court's judgment is correct. In any event, for a long period, the State has in fact been promoting persons Battalion-wise, and because a large number of vacancies existed so far as Battalion No.4 was concerned, the respondents, therefore, got retrospective promotion.

Section 5 of the Jammu and Kashmir Police Act 1983 states:

5.CONSTITUTION OF THE FORCE: The entire police establishment under the general police district, shall, for the purposes of this Act, be and deemed to be one police force and shall be formally enrolled; and shall consist of such numbers of officers and men and shall be constituted in such manner, and the members of such force shall receive such pay, as shall from time to time be ordered by (the Government).

The 1974 orders which are determinative of the matter at hand state:

"CENTRAL POLICE OFFICE J&K JAMMU

ORDER NO.167 OF 1974

DATED : 27.02.1974

In continuation of this office directive No.8775-84/CPO dated 25.2.1971, no constable shall be promoted in the rank of Selection Grade Constable unless he:-

a) Can read and write simple urdu sentences and English numerals.

b) Has Ch. Roll of any entry carrying a moral stigma.

2) These conditions can only be relaxed by DisG of Police for good reasons which shall be

recorded in writing.

3) Men who possess the essential qualifications prescribed in paragraph (1) may be promoted as vacancies occur according to their seniority provided they obtain not less than 50% of marks in the aggregate of 75 marks distributed in the following manner:........"

This order was amended on 30th March, 1974 as follows:

"CENTRAL POLICE OFFICE JAMMU & KASHMIR JAMMU

ORDER NO.236 OF 1974

DATED : 30.03.1974

1) This order is in partial modification of CPO Order No.167 of 1974 dated 27.02.1974 regarding promotion to the post of Constable Selection Grade.

2) It has been decided that half the number of selection grade posts available in each unit will be given to Constables with long meritorious service. For those posts all Constables will be considered strictly in order to their seniority and selection grade awarded in that order subject to rejection of the unfit."

A perusal of the aforesaid Act and the said two orders makes it abundantly clear that the entire Police Force must be looked at as a whole. The Act specifically states that the entire Police Establishment shall be deemed to be one Police Force, and the amending order dated 30.03.1974 specifically speaks of "All Constables" who are to be considered for promotion. This being the case, the impugned judgment in allowing the defence of the State, that seniority was to be determined Battalion-wise and not Force-wise, is clearly incorrect being contrary to both the Act as well as the aforesaid orders. Not only has a settled position for 13 years been unsettled, which itself is good enough to allow these appeals, but we find on the merits also that the State does not appear to have any statable case.

The appeals are accordingly allowed. The judgment dated 19th March, 2004 is set aside and the seniority of the appellants viz-a-viz private respondents shall be recomputed in accordance with law, with all consequential benefits.

Needless to state, that this judgment will apply only to the parties before this Court.

....................J. [ROHINTON FALI NARIMAN]

...................J. [SANJAY KISHAN KAUL]

NEW DELHI,

JULY 11, 2017.

ITEM NO.104 COURT NO.12 SECTION XVI -A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).4919-4920/2008

KARAN SINGH & ORS. Appellant(s)

VERSUS

THE STATE OF JAMMU AND KASHMIR & ORS. Respondent(s)

Date : 11-07-2017 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

For Appellant(s) Mr.Ashok Mathur, AOR Mr. Nedhi Agarwal, Adv.

For Respondent(s) Mr.M. Shoeb Alam, AOR Ms.Fauzia Shakil, Adv. Mr. Ujjwal Singh, Adv. Mr. Mojahid Karim Khan, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeals are allowed in terms of the signed order.

(USHA RANI BHARDWAJ) (MADHU NARULA) AR CUM PS BRANCH OFFICER

Signed order is placed on the file.