Mohd Iqbal vs State and Others

Mansoor Ahmad Mir, J.—Precise question for consideration is whether promotion order can be revoked without hearing an employee?

It appears that petitioner was working as Head Constable in the year 2002, came to be promoted as Assistant Sub Inspector vide Government

Order no. 844 of 2002 dated 16th of July' 2002. Thereafter, respondents at his back, passed an order No. 497 of 2004 dated 11th of

November' 2004 whereby and where-under the said promotion order came to be recalled-rescinded. Feeling aggrieved, petitioner questioned the

same on the grounds taken in the writ petition.

Respondents have filed reply. They have accepted it in para 2 of the reply, that nothing adverse was reflected against the petitioner when his

case was considered for promotion. Thus, the promotion came to be granted after due deliberations and considerations. According to the

respondents, some departmental inquiry was pending against the petitioner and Departmental Promotion Committee (for short ""D.P.C"") has not

made recommendation in his favour, which made the respondents, after lapse of two years, to pass the impugned order.

It is beaten law of the land that right of consideration for promotion is a legal right, but to claim promotion is not a right. But when promotion is

granted, it creates a vested right and it cannot be taken away without hearing an employee.

It would be apt to reproduce Regulation 396 of J&K Police Manual, which reads as under:

Probationary Period of Promotion:- All police officers promoted in rank may be reverted within two years of promotion without departmental

proceedings as in the case of constables promoted to the rank of Head Constable Junior Grade. Reversion of an Officer shall not be considered as

reduction. Confirmation will be subject to a favourable report rendered to the officer authorised to make promotion prior to the expiry of the

period during which reversion is possible.

In terms of Regulation 396 of J&K Police Manual, a promotion order can be withdrawn, rescinded or cancelled during the period of probation

without conducting departmental proceedings-inquiry within two years from the date of issue of the order. If the order is not passed within two

years, then in terms of the said Regulation, departmental inquiry was required.

While arguing, Mr. Qureshi, placed on record a photostat copy of communication No. GB/Rep/5453-59 dated 03rd of May' 2005, made by

the Commandant I.R. III Battalion to Additional Director General of Police, which provides that there was need to pass the impugned order and

the promotion was rightly granted. Mr. Qureshi, also stated at bar that the petitioner is still holding the post of Assistant Sub Inspector as on today.

Keeping in view the discussions made herein above read with mandate of Regulation 396 of J&K Police Manual, the writ petition succeeds and

same is allowed.

Accordingly, the impugned order is quashed.

Disposed of along with all CMPs, if any.