MOHAMMAD TAYUB MALLA Vs. STATE AND ORS.

JUDGEMENT

(1.) Petitioner came to be appointed as Constable in Jammu & Kashmir Police Department on 13th of August, 1979. He along with other constables was deployed on guard duty on bridge at Yaripora Tehsil Kulgam in the year 1994. During the intervening night of 30th/31st March, 1994, militants indulged in indiscriminate firing on the guards and damaged the bridge despite resistance by the petitioner and other constables. He and other personnel deployed at the bridge came to be terminated from services by SSP, Anantnag, vide order dated April 11, 1994. Petitioner and other constables challenged the said order before this Court by the medium of writ petition-came to be allowed with liberty to the respondents to hold fresh enquiry in the matter and also denied back wages. Feeling aggrieved, they questioned the order of the learned Single Bench by the medium of LPA's in so far it relates to holding of fresh enquiry and depriving them from back-wages. LPAs came to be allowed vide judgment dated 8th of July, 1999-Annexure-A to the writ petition. The respondents in compliance with the said judgment modified the reinstatement orders of the petitioner and other constables and also paid all back wages to them.

(2.) Petitioner after reinstatement undertook Lower Class Course successfully from SK Police Academy in the year 1999-2000. It is contended in this writ petition that the petitioner and other police constables whose names are narrated in para 7 of the writ petition and whose services were also terminated, came to be promoted to higher rank-Head Constables while as petitioner was not promoted. He made representation-annexures-B for granting him the same treatment but respondents turned deaf ear and ultimately respondents issued annexure-C whereby petitioner came to be informed that he was denied promotion because he was censured in the year 2001 and his performance was recorded as below average for the year 2000-01,2001-02.

(3.) The precise case of the petitioner is that petitioner and other similarly situated constables were entitled to promotion in the year 1998, others came to be considered and promoted while as petitioner was denied the promotion. Further it is contended that there is nothing against the petitioiner till 1999 which could be made basis for denying the promotion. Any un-communicated adverse remark recorded in the APR's or any punishment recorded or awarded after 1999 cannot be made a ground for denying the promotion. Moreso when such material was not available and adverse APR's were not in existence at that particular point of time. Further case of the petitioner is that he was never conveyed the said ACR's or any punishment. No doubt he came to be terminated becaue of the militant attach but the learned Single Bench and LPA Bench set-aside the termination order and granted all relief's including the backwages and how that can be now made basis to deny promotion and moreso when others who were also terminated were granted promotion.