FAROOQ AHMAD MIR Vs. STATE

JUDGEMENT

(1.) FOUR writ petitions dealing with the same subject matter shall stand disposed of vide this common judgment.

(2.) THE facts be noticed as under: Petitioners in writ petition No. 630/95 i.e. Farooq Ahmad Mir and others vs. State & ors are at present members of Jammu Kashmir Armed Police. As per them initially they came to be appointed in the Jammu and Kashmir Police. Later on, they were allocated to the Jammu and Kashmir Armed Police. It is submitted that the Jammu and Kashmir Armed Police is a part and parcel of a Single Police Force governed by the Jammu and Kashmir Police Act and the Jammu and Kashmir Police Manual. According to the petitioners, the Armed wing and the others wing etc. are to be treated as a single unified force. It is one entity. It is submitted that a person working in one wing can be transferred to another wing also. In short it is submitted that a person working in one wing can be transferred to another wing also. In short it is submitted that a person borne on different cadres are inter -transferable. The only distinction which is being pointed out is that beyond the level of inspector, the seniority has to be maintained state wise. What is sought to be urged is that the members of Jammu and Kashmir Armed Police being part and parcel of police Force should be treated as one force and single seniority should be prepared. The promotions as and when the vacancies arise should be made on the basis of this common seniority. With a view to sustain this argument reference is made to Jammu and Kashmir Police Act. It is said that the term "Police district" has been defined in section 5 of the Act. Reliance is also being placed on regulation 173 of the Jammu and Kashmir Police Manual which deals with the posting and transfer and also on regulation 172 which deals with the issue of seniority. It is accordingly submitted that the entire police force is to be treated as a single unit and therefore a common seniority list has to be prepared. With a view to sustain this argument, reliance is being placed on a Division Bench Judgment of this court LPA No. 28/72 decided on 05.12.1992.

(3.) IN writ petition SWP 1889/98 i.e. Abhay Kumar Mahajan V State and the point of view which is sought to be put across in almost similar to the one raised in Farooq Ahmad Mils case with a view to appreciate the controversy the facts in Abhay Kumar Mahajans writ petition be also noticed: Petitioner Abhay Kumar Mahajan is a member of Executive Wing of the Police Force. His grievance is that respondents No.3 to 40 who came to be appointed in the Jammu and Kashmir Armed Police, have been given promotions in the Armed wing of the force It is submitted that if a common1 seniority list is maintained, then the petitioner who came to be appointed earlier to these private respondents was also eligible to be given the promotion on the same basis as has been done in the case of private respondents. It is also urged that after respondents 3 to 40 become Inspectors a common seniority is being maintained and these private respondents have been placed over and above the petitioner on the basis of their having carried the promotions earlier to the petitioner in the Jammu and Kashmir Armed wing of the Police force. With regard to respondent No. 41 it is submitted that he came to be promoted as Deputy Superintendent of Police on the basis of reservation. It is submitted that the concept of reservation is no longer available. For this reliance is being placed on a decision of the Supreme Court reported as Indira Sawhney etc Vs. Union of India & Ors. AIR 1993 SC 477. It is stated that the aforementioned Judgment was given on 16th Nov 92. The Supreme Court of India had protected the rights of this category for a period of five years. This period of per the counsel expired on 16th Nov97 there can be accordingly urged that after 16th Nov97 there can be no reservation. It is urged that no doubt Article 16 of the constitution has been amended but there is no corresponding amendment made in the Jammu and Kashmir constitution, therefore the amendment made in the constitution of India would not come to the rescue of respondent NO. 41. Reliance is also being placed on a decision given by this court in SWP No. 486/89 decided on 23rd Dec 96.