AB RASHID QADIRI Vs. STATE

JUDGEMENT

(1.) THIS is a writ petition under section 103 of the Constitution of Jammu and Kashmir. It is directed against Government Order No. Home -138 (Police) of 1971 dated April 24, 1971 (Annexure J to the petition). That order reads: - "GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT -HOME DEPARTMENT Government Order No. Home -138 (Police) of 1971 Dated April 24, 1971. Whereas vide Central Police Offices Order No. 201 of 1969 dated 25 -6 -1969, the seniority of Shri Abdul Rashid Qadiri then working as Deputy Superintendent of Police was indicated in the cadre of Inspectors, of police; and Whereas by virtue of the aforesaid seniority, Shri Abdul Rashid Qadiri was temporarily promoted to the post of Superintendent of Police and posted as Superintendent of Police (Traffic), Jammu; and Whereas a number of appeals and representations were filed against the aforesaid seniority and promotion of Shri Abdul Rashid Qadiri which resulted in the revocation of the said order No. 201 of 1969 dated 25 -6 -1969; and Whereas in the meanwhile the seniority of police officers in the cadre of Deputy Superintendents of Police was being finalised and after consideration of all the representations received in this behalf the Government vide Home Departments No - Home 88/71 PB (GAZ) dated 29 -1 -1971, issued a final seniority list of Deputy Superintendents of Police; and Whereas consequent upon the finalisation of the seniority of the Deputy Superintendents of Police as aforesaid, it was found that the basis on which Shri Abdul Rashid Qadiri held the post of Superintendent of Police temporarily remained no longer tenable and accordingly he was to revert to his original post of Deputy Superintendent of Police; and Whereas in the fresh selection for the posts of Superintendents of Police from amongst the eligible Deputy Superintendents of Police, the case of Shri Abdul Rashid Qadiri was also considered on the basis of merit and suitability with due regard to his seniority and was not found fit for the post of Superintendents of Police. Now, therefore Government hereby orders that Shri Abdul Rashid Qadiri will resume the post of Deputy Superintendent of Police with effect from the date of this order. He will report to Inspector General of Police for further orders of posting as Deputy Superintendent of Police. By order of the Government of Jammu and Kashmir. Sd/ - (G. M. Mir) Secretary to Government, Home Department."

(2.) THE facts are these: The petitioner joined service of the State as Sub -Inspector of Police in the year 1948. There were two grades of Sub -Inspectors then, junior grade and senior grade. The petitioners order of appointment did not specify to which of these grades he was appointed. He was, however, treated to have been appointed as Sub -Inspector, junior grade. The petitioner made representation to the Government which was accepted by the then Deputy Prime Minister Incharge Police who ordered that the petitioner be promoted to the senior grade cadre of Sub -Inspectors. The order was conveyed to the Inspector General of Police by the Secretary to Government, Home Affairs, under his letter No. PB -1536/49 dated 8 -8 -1951 Annexure C to the reply affidavit). By order No. 162 of 1951 dated November 8, 1951 the Inspector General of Police therefore promoted the petitioner as Sub -Inspector, senior grade with effect from 8 -8 -1951 (Annexure D to the Reply affidavit). Later on the petitioner was confirmed as Sub -Inspector with effect from 1 -7 -1952 vide Inspector General Polices order No. 47 of 1964 dated 6 -3 -1964 (Annexure E to the Reply affidavit). Meanwhile he was promoted as Inspector of Police with effect from 1 -4 -196) vide Inspector General of Polices order No. 144 of 1961 dated 14 -4 -1961 (Annexure C to the Reply affidavit). He was confirmed as Inspector of Police with effect from 1 -4 -1963 under Inspector General of Polices order No. 435 of 1964 dated 24 -4 -1964. (Annexure H to the Reply affidavit). His name was placed at No. 39 in the list of confirmed Inspectors shown in the order, He made a representation against his placement in the list. The matter was referred by the Inspector General of Police to the Home Department for guidance. (Annexure ˜j™ to the Reply affidavit). On receipt of reply from the Home Department the Inspector General of Police considered the matter and by his order No. 60 of 1965 dated 1 -2 -1965 (Annexure K to the Reply affidavit) ordered that the petitioner shall rank senior to Shri Mohammad Khalil Inspector who too like the petitioner was confirmed as Sub -Inspector with effect from 1 -7 -1952. Meanwhile the petitioner appears to have been promoted as officiating Deputy Superintendent of Police on 25 -1 -1965 in his turn. On 21 -3 -1966 the seniority list of gazetted officers of the Police Department including Deputy Superintendents of Police (Annexure VI to the petition) was published in which the petitioners name was shown at No. 54. The seniority of Deputy Superintendents of Police commenced from serial No. 20. The order of the Inspector General of Police placing the petitioner above Shri Mohammad Khalil did not satisfy the petitioner. He claimed a still higher position at serial No. 22 above Shri D. N. Tiku consistently with the view conveyed by the Home Department. The claim found favour with the Inspector General of Police, who, by his order No. 201 of 1969 dated 25 -6 -1969 (Annexure III to the petition) ordered that the petitioner shall rank senior to Shri D. N. Tiku adding further that the promotion of the petitioner to the rank of Inspector shall be deemed to have effect from 1 -1 -1958 the date when Shri D. N. Tiku was promoted as Inspector, subject however to the condition that the petitioner shall not be entitled to any arrears in his emoluments. Subsequently by Government order No. Home 658 (Police) of 1969 dated 14 -10 -1969 (Annexure V to the petition) the petitioner was promoted as Superintendent of Police temporarily along with few others namely Shri Abdul Khaliq Butt, Shri Veeranna Aivalli and Shri Surat Singh. The petitioner was posted as Superintendent of Police (Traffic) Jammu. He continued to function as such for about 1Â 1/2 years till 24 -4 -1971 when the impugned order was passed by the Government and he was reverted as Deputy Superintendent of Police. Earlier vide Government Order No Home -64 (Police) of 1971 dated

(3.) -3 -1971, a copy whereof is on the file, some more Deputy Superintendents of Police namely Shri Mohd. Nassar Khan, Shri G. R. Dainposh, Shri Afzal Ahmad, Shri Ali Mohd. Watali, Shri Mohd. Amin Khan, S. Moti Singh, S. Surjit Singh, Shri Konchak Chospil and Abdul Majid Lone were promoted as Superintendents of Police. Both these orders followed the revocation of his earlier orders of 1965 and 1969 (No. 60 of 1965 and No. 201 of 1969) regarding the petitioners seniority by the Inspector General of Police by his order No. 448 dated 5 -12 -1970, and the preparation, meanwhile, in accordance therewith, of a fresh seniority list of Deputy Superintendents of Police by the Government Circulated vide Home Department No. 88/71 -PB (Gaz) dated 29 -1 -1971, a copy whereof is on the file. Consistently with the latest orders of the Inspector General of Police concerning the seniority of the petitioner in the order of Inspectors, the petitioners position was shown at S. No. 38 in the aforesaid list. 3. The petitioners case is - 1. That the order is violative of section 126 of the Constitution of Jammu and Kashmir; 2. That even apart from section 126 of the Constitution of Jammu and Kashmir, the order is violative of the principles of natural justice; 3. That the order is misconceived, arbitrary, capricious and mala fide; and