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Jammu, March 21: In Transfer Application No. 5092/2021 SWP No.1412/2011 titled Basharat Hussain vs Versus 1. State of Jammu & Kashmir, Through Commissioner/Secretary to Government, Home Department & ors after hearing bench of HON’BLE MR. RAJINDER SINGH DOGRA , MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A) ordered as under:-
1. The applicant by way of filing SWP No.1412/2011 had initially invoked the writ jurisdiction of the Hon’ble High Court seeking therein the following reliefs:-
a. Writ of Certiorari quashing impugned order No. 3652of 2008 dated 29-11-2008 being arbitrary and bad in the eyes of law as the same has been passed without application of judicious mind. b. Writ of mandamus commanding the respondents to grant regular due promotion to the post of ASI after completion of requisite period of service. c. Writ of mandamus commanding the respondents to grant out of turn promotion to the next higher post in the department in view of participation in the occurance in FIR 25/1999 at par with veer Singh S/O Dhani Chand R/O Gandoh. d. Writ of mandamus commanding the respondents to produce record of out of turn promotions of police personnel’s including Veer Singh who too have performed such bravery duties so that the Hon’ble Court can peep into the real history of promotions in the police department. e. Any other appropriate writ, order or direction which this Hon’ble Court deem fit and proper in the facts and circumstances of the case may also be issued in favour of the petitioner, in the interest of justice.
2. In view of the Notification No.GSR . 317(E) dated 29th April, 2020 read with notification No.GSR 317 (E) dated 28th May , 2020 issued by the Ministry of Personnel , Public Grievance and Pensions ( Department of Personnel and Training ), the aforesaid writ petition came to be transferred to this Tribunal for its disposal under law, thus the petition came to be renumbered as TA. 5092/2021.
3. The applicant in the instant TA is aggrieved of the order dated 29-11-2008, whereby the case of the applicant for the purpose of grant of out of turn promotion has been rejected on the plea that the service rendered by the applicant is routine duty which he was otherwise bound to perform. Besides the applicant has also sought direction to the respondents to grant him regular promotions.
4. The case of the applicant in nutshell in the instant TA is that the applicant has been deprived of Out of turn promotion, despite having performed extra-ordinary on operational front while saving life of learned Additional District and Sessions Judge, Poonch on 17-04-1999, when while coming back from Poonch to Rajouri and on the way at Bahrote Thanamandi, militants who were in ambush attacked the learned Additional Sessions Judge, and escort party which took life of two police personnel’s namely Rakesh and Gulzar but the learned Sessions Judge was saved from the jaws of hell by the applicant and one Veer Singh S/O Dhani Chand and in the said incident the applicant received bullet injury and remained admitted in hospital fro two months.
5. The respondents have filed their reply wherein stand is taken that the applicant was performing his routine duty which he was otherwise bound to perform. Along with the reply a copy of another order dated 13-02-2012 has also been placed on record whereby an altogether different stand has been taken while rejecting the case of the applicant that the out-of turn promotions are granted on the basis of outstanding and consistent performance on operational front which as mentioned in this order dated 13-02-2012 according to the respondents are pre-requisite for the same.
6. The applicant has thus filed rejoinder to the counter/objections filed and stated that in the reply filed on behalf of the respondents an altogether new case has been sought to be carved out by the respondents that the case of the applicant allegedly has not been recommended by the concerned SSP or IGP of the concerned zone as such could not be considered.
The reply/counter affidavit at reply para-4 in response to para-5 of the petition also refers to some factual reports from the IGP Jammu, zone which however have not been placed before this Tribunal.
The applicant thus in response to the aforesaid contradictory assertions of the respondents, has submitted in the rejoinder affidavit that no doubt the out of turn promotions are granted on the basis of outstanding and consistent performance on operational front but in the instant case with a view to deprive the applicant of his right of consideration for such out of turn promotion, the respondents have failed to consider the consistency in the outstanding performance of the applicant on operational front , some of the examples as are quoted by the applicant with documentary proof thereof are as under:-
i. The applicant in the year 2010 remained and had been used as a main source for catching hold of dreaded Militant namely Mohd Shafi Pathan Code Pathan , S/o Yaqoob Shah R/o Ganai Gund Anantnag who was catch hold by the forces only because of the extra efforts put by the applicant herein. ii. In the year 2010 itself one more militant namely Nazir Ahmed Gorsi Code Saqib S/o Noor Mohd Gorsi R/o Bunjwah was arrested on the information and assistance of applicant herein. iii. In the year 2002 more particularly on 24-04-2002 the brother as well as mother of the applicant were killed by the militants.
iv. On 16-10-2002 based on the information of the applicant and further on due assistance rendered by to the operational party one militant was killed at Kither area of Kishtwar. v. On 02-08-2002 two militants were killed at Banger Dhar Saroor ( Kishtwar ) with the active participation and also as per the information rendered by the applicant herein. vi.
Similarly the incident of bravery shown while saving life of Learned District & Sessions Judge, Poonch on 17-04- 1999 was also to be taken into consideration in view of the outstanding and consistent performance on operational front executed by the applicant.
7. Mr. Natnoo learned counsel for the applicant while referring to the stand and also the copy of the order dated 13-02-2012 placed along with reply thus would submit that the respondents because of contradictory stands taken in the order impugned and that in the reply filed have tried to misled this Tribunal, as if, there is no consistency in the performance of the applicant on the operational front , which in view of the details provided herein above it was submitted that the said stand of the respondents is totally misconceived as such need no consideration at all.
8. We have heard learned counsel for the parties at length and perused the pleadings/record of the case in detail.
9. Admittedly the applicant while working as constable and performing the duties with learned Additional District and Sessions Judge, Rajouri had participated in the escort operation where the applicant has sustained built injury, while saving the life of learned Additional & Sessions Judge, Rajouri from the attack of antinational elements/militants, which fact is evident from copy of the FIR bearing No. 25/1999 placed with the file of the instant TA.
However despite having got bullet injury in the attack and hospitalization for two months, the applicant was denied out of turn promotion which was applicable as per the policy in vogue at the relevant point of time ; whereas the same was allowed to another participant/service colleague of the applicant namely Veer Singh S/O Dhani Chand, who at that point of time was an SPO only.
Thus accordingly to the applicant he has been allowed to meet hostile discrimination. The respondents in their reply though have stated non-recommendation of the case of out of turn by the SSP/DIG but the same time have placed a copy of order dated 13-02-2012 alongwith reply stating therein an additional reason that the applicant allegedly have no consistency in the performance of extra ordinary duties on operational front.
However the same as appears to us has duly been rebutted by the applicant by filing :rejoinder affidavit thereby giving the details of consistency in the performance on operational front.
10. In view of the aforesaid analysis, the impugned order bearing No. 3652 of 2008 dated 29-11-2008 as well as subsequent orders issued by respondent No. 2 cannot sustain.
The same are, therefore, quashed. Respondents 2 & 3 are directed to allow out of turn promotion to the applicant with all notional effects and from the date the applicant was deprived of the same.
11.The needful as above shall be done within a period of two month from the date of receipt of copy of this order.
12.No order as to costs.
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