OM PARKASH Vs. STATE OF J&K

JUDGEMENT

(1.) RESPONDENT No. 2 vide order No: 236 of 1974 dated 30 -3 -1974, annexure A partially modified CPO Order No; 167 of 1974 dated 7 -2 -1974 regarding the promotion to the post of constable selection grade by providing that half the number of selection grade posts available in each unit will be given to constable with a long me -ritorous service for which all constables were to be considered strictly in order of their seniority & selection grades awarded in that order subject to reduction of the merit. It was further provided that the other 50% of selection grades would be awarded on the basis of competition test marking system as already prescribed by rule 385 of J&K police Manual. The candidates were also required to be tested in a parade for which only 10 numbers were allowed. Constable with one years service who had passed their recruits training course were deemed to be eligible for the test. It was further provided that those found suitable would be brought on re -designated list A & promoted to the selection grades as vacancies occur. The system of promotion to the rank of constables & others promotions of list C was not to be charged. Selection grade constables were to constitute a rung in the ladder of promotions to the rank of Head Constable only after all selection grade posts are filled in after four years, till then every constable selection grade or otherwise who had five years was held eligible for list C. The Departmental promotion committee for list A and promotion to the selection grades was to be constituted by the Superintendents of police commandants themselves. Vide order No; 720 of1978 dated 11.11.1978, it was provided that in supersession of all previous orders on the subject of preparation of list A & C in the police department, the rules and guidelines prescribed vide the aforesaid order \annexure B" shall be followed. According to this order for list A, all the constables who had completed five years of service and had successfully passed the KTD at PTS Udhampur examinations and were in a position to read and write simple urdu sentences and english numeral were deemed to be eligible for the test. It also provided the marking system For list C it was provided that all selection grade constables with eight years total service including the service as constable were to de deemed eligible to be brought on list C. The test marking system for List A was also to apply for list C. No selection grade constables was to be promoted to the rank of Head constable until he had passed lower school course from the PTC Phillaur. 10% posts in the rank of head constables were reserved for aged selection grade constables & their names were to be inserted in the list on the basis of the seniority except in a case where the senior was considered due to his bad record. Five major punishments were deemed to be a disqualification. It was further provided that D. P. Cs would be constituted for both the lists by the Superintendents of police/ Commandants and all eligible constables/ selection grade constables Were to be called for test/interview and the list so prepare as not to exceed the number of vacancies which were likely to occur within the next 18 months. Feeling aggrieved of the aforesaid orders, the petitioner presented this writ petition on 24 -2 -1982 mainly on the ground that the impugned orders having been passed in contravention of the statutory provisions, were liable to be quashed It was submitted that the respondent No; 2 did not have the jurisdiction to the aforesaid impugned orders, as these were intended to over -ride the provisions of rule 385 of the J&K police Rules . It is submitted that under rule 383 any constable who can read and write simple urdu sentences and english numerals with a clear characterial was entitled to be considered for promotion to he Head Constable junior grade not with standing the fact that by an executive order some posts of constable selection grade had also been created. In the alternative it is submitted that even according to the impugned orders 50% of the vacancies among the selection grade constables have to be filled by seniority alone and as no seniority list of the constables had been drawn up, the promotion made ignoring the claim of the petitioner was liable to be quashed, it is prayed that after quashing the impugned orders the respondents be directed to promote the petitioner as head constable junior grade and give him all the benefits of seniority, pay and grade from the date he was eligible for promotion.

(2.) IN the counter affidavit filed on behalf of the respondent supported by an affidavit of Sh. S. L. Suri CPO it is submitted that the service record of the petitioner revealed that he passed his RTC & PTC, Srinagar in the year 1962 He had also undergone promotion course for constables in PTC Udhampur in the session ending 1971. It is further submitted that according to rule 385 of the J&K Police Manual, the petitioner was not eligible for promotion as it was not obligatory for the respondents to promote a constable who completed RTC successfully because other aspects of service career of a constables were also to be kept in view at the time of promotion The orders impugned were in fact the detailed instructions regarding preparation of List A & C, in supersession of all the previous orders on the subject. The petitioner is alleged to have remained in CID Organisation till 25 -6 -1976 when he joined Jammu District police on being transferred from CI. A DPC was held in the year 1978 for the Jammu District in accordance with the then existing rules on the subject. The petitioner earned a major punishment on 9 -1 -1978 and his annual increment was stopped for deriliction of his duties while being posted as Muharir Chowki petitioner could not get any higher rank SGC or HC Junior Grade. According to rule 388 (3) of the police Manual the infliction of any major punishment upon a constable placed a bar for his promotion to list C. For the reasons of having incurred a major punishment, the petitioner was not brough on promotion list "A during the year 1978 in Jammu District. It is claimed that as no fundamental or legal right of the petitioner was violated, the petitioner deserve dismissal

(3.) IN the rejoinder affidavit it has been submitted by the petitioner that he was deputed for training in the PTC Phillaur because he was considered fit for promotion as Head constable Junior Grade. The imposition of punishment referred to in the counter of the respondents did not justify his non -selection because he alleges that he was never considered for promotion or refused promotion on the basis of alleged punishment. The efficiency bar of the petitioner was released With effect from 10 -1 -1975 which according to him obliterates the punishment allegedly imposed upon him.