Bashir Ahmad Parray vs State Of JK & Ors

Ali Mohammad Magrey, J

This intra Court appeal is directed against the Judgment dated 26th of September, 2017 passed by the learned Single Judge in SWP No. 1790/2015, whereby and whereunder the Petition filed by the Writ Petitioner/ appellant herein stands dismissed.

The brief facts leading to the filing of this appeal are that the Writ Petitioner/ appellant herein, way back in the year 2008, participated in the selection process initiated by the Respondent-Department for filling up the available vacancies of Constables in various Districts of the Kashmir Province, including District Baramulla. Upon culmination of the aforesaid selection process, the appellant was declared as successful in all the requisite tests and, accordingly, his name was included in the final select list, however, no formal order of appointment was issued in the case of the appellant on the ground that he was involved in FIR No.49/2001 registered at Police Station, Kunzar. Aggrieved thereby, the appellant filed Writ Petition bearing SWP No. 270/2011, stating therein that since he already stands acquitted of the aforesaid criminal case registered against him by the competent Court of jurisdiction, therefore, he was entitled to be appointed in the Respondent-Department as a Constable in tune with the merit position obtained by him in the selection process. The aforesaid Writ Petition came to be disposed of vide Order dated 17th of February, 2011 directing the Respondents to consider the appointment of the appellant. In compliance of the aforesaid direction, the appellant was appointed as a Constable in the Respondent-Department in terms of Order dated 16th of March, 2012. After having been appointed as such and joining his duties, the appellant submitted a representation before the Respondents for giving him appointment with retrospective effect. Since, no action was taken on the said representation, the appellant claims to have filed another Writ Petition bearing SWP No. 2239/2012, which Petition, too, vide Order dated 27th of August, 2013, came to be disposed of with a direction to the Respondents to consider the claim of the Petitioner for his appointment retrospectively. Thereafter, the Respondents, by an Order dated 13th of November, 2014, considered and rejected the claim of the appellant for seeking retrospective effect to his appointment in the Respondent-Department. This Order dated 13th of November, 2014 was challenged by the appellant in SWP No. 1790/2015, inter alia, on the grounds that the same suffers from the vice of non-application of mind on the part of the Respondents; besides the same has been issued without taking into consideration that the appellant stands already acquitted of all the criminal charges levelled against him. The learned Single Judge, after hearing the parties, in terms of Judgment dated 26th of September, 2017, dismissed the Petition filed by the appellant. It is this Judgment dated 26th of September, 2017 passed by the learned Single Judge that has been assailed by the appellant herein in this appeal on the grounds detailed out in the memo of appeal.

Having heard the learned Counsel for the parties; gone through the pleadings on record and after considering the matter, we are of the considered view that the impugned Judgment passed by the learned Single Judge is not only eloquent and clear, but also in consonance with the rules/ law governing the subject. The learned Single Judge has rightly appreciated the claim made by the appellant in the light of the mandate of the provisions of law relevant for determination of the case. The Respondents, after ascertaining the fact that the appellant was involved in criminal charges, though acquitted from the same, did not issue the formal appointment order in favour of the appellant and it was only after the direction of the Court passed in the earlier Writ Petition filed by the appellant that the appellant was appointed in the Respondent Department. The Respondents appear to have withheld the appointment order of the appellant having regard to the fact that the appellant, whose involvement had surfaced in criminal charges, was not feasible to be appointed in a disciplined force like the Police Department. It is, thus clear that the Respondents, who were otherwise reluctant to issue appointment order of the appellant in view of his involvement in the criminal case, seemingly took a sympathetic view of the matter in the light of the directions of the Court and issued the appointment order of the appellant. In such circumstances, the appellant, instead of being satisfied with his appointment, filed yet another Writ Petition with regard to seeking retrospective effect to his appointment least caring about the fact that his very appointment in the Respondent Department was shrouded under cloud and based on the directions passed by the Court in the earlier round of litigation. In that view of the matter, the decision of the Respondents in rejecting the claim of the appellant for seeking retrospective effect to his appointment, as rightly observed by the Writ Court, cannot be said to be erroneous or arbitrary.

Apart from the above perspective, it, needs, must be said here that in the event the claim of the appellant for retrospective effect of his appointment was accepted, the same would have definitely not only affected the rights and interests of other employees concerned who were discharging their duties in the Respondent Department much before the date of appointment of the appellant, but also resulted in unsettling positions that were long settled in the Respondent Department, thereby leading to grave implications and multiplicity of litigation.

Viewed in the above background, we do not find any illegality or perversity in the impugned Judgment passed by the learned Single Judge as would warrant its interference from this Court. Consequently, this appeal fails and is, accordingly, dismissed. Interim direction(s), if any subsisting as on date, shall stand vacated.

Pending Miscellaneous Application(s), if any, shall also stand disposed of accordingly.