MOHD. SHARIF SHAH Vs. STATE

JUDGEMENT

(1.) The petitioner appointed as Constable in Jammu and Kashmir Police on 17th March, 1979, was on 23th July, 1992, while posted at police post Warwan deputed to undergo refresher course at District Police Lines, Doda. The training course concluded on 12.9.1992 and the petitioner was relieved from District Police Lines and directed to report at police post Warwan. The petitioner could not report to his duty because of his illness and hospitalization till 13th October, 1992. The petitioner's unauthorised absence w.e.f. 13.9.1992 to 13.10.1992 led to an enquiry held by Sub Divisional Police Officer, Kishtwar and the period of unauthorised absence of 30 days w.e.f. 13.9.1992 to 13.10.1992 was treated as "Dies-non".When the petitioner was on unauthorised absence, a group of militants on 12.10.1992 attacked police post Warwan and looted arms and ammunitions without any resistance from the police personal posted at police post. The incident also led to an enquiry conducted by Sub Divisional Police Officer, Kishtwar. The Disciplinary Authority on the basis of enquiry report concluding that petitioner was present on duty on 12.10.1992 at police post Warwan and had shown cowardice and negligence towards duty, vide order No. 697 of 1993 imposed punishment of forfeiture of annual increment for three years, on the petitioner. The conclusion was drawn oblivious to finding returned by the Enquiry Officer (Sub Divisional Police Officer, Kishtwar) in enquiry regarding unauthorised absence of the petitioner, wherein the petitioner was found to have been unauthorisedly absent from duty till 13.10.1992 i.e. one day after the incident of militant attacked on police post Warwan. The petitioner filed a review petition impressing upon the authorities that as he was not physically present at police post Warwan on 12.10.1992, he could not be held responsible for failure to repel the militant attack. The Disciplinary Authority impressed only the case set up vide order No. 493 of 1999 dated 9.3.1999 reviewed the earlier order No. 697 of 1993 dated 20.11.1993 and converted the forfeiture of annual increment for three years into stoppage of annual increment for one year.

(2.) The petitioner questioned order No. 488 of 1993 dated 12.8.1993 whereby his period of unauthorised absence was treated as "Dies-non ", order No. 697 of 1993 dated 20.11.1993 imposing punishment of forfeiture of annual increment for three years and order No. 493 of 1999 dated 9.3.1999 converting the forfeiture of annual increment for three years into stoppage of annual increment for one year, in a writ petition registered as SWP No. 1348/1999. The writ Court vide order dated 27.7.2001, while disposing of the writ petition held the order No. 493 of 1999 dated 9.3.1999 to have been "passed after taking into consideration all the facts and circumstances of the case" and observed that "no room is made out for interference" with the order. The Writ Court opined that challenge to the order No. 488 of 1993 dated 12.8.1993 was belated, but noticing the case law on the subject modified the order No. 488 of 1993 dated 12.8.1993 to the effect that the period of absence shall not be treated as break in service but the petitioner shall not be entitled to any wages for this period. The petitioner sought review of the writ Court order dated 27.7.2001 through medium of a review petition registered as Review (SW) No. 1348/1999. The review-petition was disposed of vide Order No. 12.2.2002, reiterating that there would be no break in service. The controversy as regards the order No. 488 of 1993 dated 12.8.1993 thus stands finally resettled.

(3.) The petitioner has once again approached the Court- now with a grievance that the petitioner has not been considered for promotion to the post of Selection Grade Constable w.e.f. December, 1995 and to the post of Head constable w.e.f. December, 2000 on the erroneous assumption that the order 488 of 1993 dated 12.8.1993 amounted to break in service of the petitioner. The petitioner complains that he has been promoted as Selection Grade Constable on 11.1.1998 and is yet to be promoted to the post of Head Constable as on the date of filing of the writ petition, though the petitioner having regard to his seniority was to be promoted as Selection Grade Constable w.e.f. December, 1995 and Head Constable five years thereafter i.e. w.e.f. December, 2000. The petitioner detailing the facts and events mapped out hereinabove in the petition, seeks following reliefs:-