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Judgment
Petitioner appointee of June, 1983, as Chowkidar in Vigilance Organisation of the State has petitioned that despite merit, and recommendations
of his immediate officers, he is not being promoted as a Constable.
Deputed on official assignments from time to time out of the State between 1983 and 1992, he earned commendation certificates and cash
rewards (Annexure B to E).
His case alongwith another person was referred for promotion as Constable Vigilance. On consideration, Commissioner of Vigilance respondent
No.3, referred the matter to Respondent 2 and 1 as early as in April, 1986. The respondents 1 and 2 on their part asked Respondent No.4,
Superintendent of Police, Vigilance Organisation, Kashmir to take height/chest measurement of the petitioner and another person Abdul Majid
Sheikh by name. The matter was again referred after required process to respondent No. 3Comissioner, Vigilance Organisation, Kashmir, J and
K, who now, instead of recommending the case of the petitioner for promotion, demoted him in the sense that he took steps to redesignate him as
Safaiwala. Not only so, he attempted to coerce him to accept the assignment, which he refused and it led to his transfer to Engineering Wing of
Vigilance Organisation Kashmir at Srinagar. He was forced to vacate the residential allotment.
Petitioner, represented against the actions and the Respondents 1 and 2,vide Annexure K and L, asked the Commissioner, Vigilance J and K
(Respondent No.3) to forward his views on the question of conversion of Class IV staff to that of Constables and the representation made by the
petitioner in this behalf. Notwithstanding the representations, the Commissioner, Vigilance, has not moved in the matter and has not even
responded to the communications despite lapse of over last six years.
It is in these circumstances, that the petitioner prays for a Writ of mandamus, commanding the respondents to convert/ promote the petitioner to
the post of Constable from that of Chowkidar in the Vigilance Department. Respondents in reply have admitted appointment and continuance of
the petitioner as Chowkidar in Vigilance Organisation. It is also admitted that the petitioner has earned commendation and cash certificates and that
a proposal was initially moved for upgrading the posts of Chowkidars to that of constables. But subsequently, the Commissioner Vigilance found
the conversions of the two posts of Chowkidars as Constables not in the interest of organisation. Instead he passed the directions that, proposal be
moved to redesignate these two posts as regular Safaiwala and not Constables. The continuous officiating service of petitioner in the Organisation
is not denied. The staff with the Vigilance Organisation is averred to have been drawn mostly from the Police Deptt. The Government order dated
04021984, which enables the Competent authority to convert the post of Chowkidars to those of Constables, pertains only to the posts of
Orderlies and Chowkidars of the Police Department and not those of the Vigilance Organisation. The post of Constable essentially belongs to the
Police Department and has to be fulfilled as per the norms and criteria laid down thereto. No promotion can be given to the post of Constable in
disregard to those norms/qualifications and guidelines. No rights of the petitioner have been violated. Therefore, he has no case before the writ
court.
The counsel for the petitioner canvases, that the petitioner having been appointed as Chowkidar in June, 1983 and despite earning and
commendation certificates and cash awards and working without any blemish, has not been promoted as Constable, whereas, those junior to him
have been given promotions to the posts of Constable. The petitioner has been made to stagnate on the post for last over 15 years. For some
ulterior motives, despite communication of Home Department, AnnexureK and L, calling for the views of the Vigilance Organisation, these
communications are not being responded to by Respondent No.3 and withholding of the information and the views is with oblique motive of
denying promotion to the petitioner, as there can be no other reason to withhold the information from the Government for last over five years.
Mr. M.H.Attar, AAG, solicits, that the Constables are deputed from Police Department and for the posts of Constables in the
Vigilance Organisation of the State, the Feeder is the Constabulary of the Police Force of the State. The petitioner cannot be promoted to the post
of Constable in the Vigilance Organisation. The Vigilance Organisation is not recruiting its constable staff: There are no rules in the Vigilance
Organisation for appointment of any staff in nonGazetted cadre in the organisation.
From record, it is more than made out, that the then officers of the Vigilance Organisation were initially quite enthusiastic to take the case of the
petitioner for promotion as Constable, as can be seen from the annexure, but however, in late 1991, the Commissioner Vigilance, developed cold
feet and wanted the conversion or Chowkidar post not to Constable posts, but to Sweepers posts. With that end in view, he took up the matter
with the Government. Admittedly, the petitioner is appointed as Chowkidar (AnnexurePA). The queries made by the Home Department
(Respondent 1 and2) seeking the latest views of the Commissioner Vigilance, J and K, regarding conversion of the post of Chowkidar to that of
Constable in Vigilance Organisation, was not adverted to. In fact, it appears that the Government has been asking the Vigilance, Organisation for
its views and stand thereto fight from 1986. The proposal initially moved for conversion of Chowkidar posts to that of Police Constable has been
kept in abeyance by the Government in June, 1986 till ""finalisation of reorganisational set up of Vigilance Organisation.
Nothing is on record to indicate, whether this reorganisational set up has been finalised. There is also nothing on record to reveal what exactly
are the rules, which determine the terms and conditions of the staff of the Vigilance Organisation. In absence of such rules, and when the
Respondents are not taking Court in confidence in the matter, it is not possible for this Court to comment on the legality or otherwise of the claim
of the Respondents that Police Constabulary of the Police Department alone is the feeder to cadre of Constable in the Vigilance Organisation.
Similarly, whether the posts of Chowkidars in Police Department alone are convertible to those of Constables, is again a matter not to be
commented upon, in absence of any information and material on record.
It merits to be noted that the petitioner is stagnating on the post for last over 15 years. For purposes of increasing efficiency of service, reducing
the chances of in efficiency and inculcating and developing the correct attitudes, temperaments and spirit in the service, the promotion, subject to
norms, eligibility and qualification is essential, even, at the lowest rung of administrative echelon. The State Government has all the powers to effect
promotion in particular when similarly placed employees of the Government in other department and wings are being given the benefit of promotion
to the higher post grade. In our welfare State, effecting promotions is essential for the health and efficiency of the public service. Contextually, it is
obligatory on the part of the officers) or authority(s) of Vigilance Organisation to advert to the petitioner's representation and respond to the
communications of the Home Department, on the subject of promotions, so important and essential for the health and efficiency of this
Organisation and its service.
In the totality of the fact situation of this case, the respondents are under legal duty to process and decide the case of promotion of the
petitioner when one set of officers of the Organisation has recommended the case and other set of officer has stood upon against the promotion.
The Administrative Department of the Vigilance Organisation, the Home Department, has ultimately to take a decision in the matter and all the
officers of the Organisation have but to respond to the communications from above and feed back the information, views, formative opinions and
required statistics to the high ups to enable the Government to take final decision thereto.
Right of consideration cannot be denied to the petitioner under any pretext. Subject to eligibility, petitioner has fundamental right to be
considered for promotion, though he has no right to seek promotion. Of course the Courts are reluctant to interfere, where an employee, though
considered for promotion, is not found fit. But, it cannot be so where refusal by long silence, inaction and keeping things under carpet, is motivated
by some extraneous considerations or is malafide.
In the result, the respondents are directed to consider and take final decision with regard to the conversion of the post of Chowkidar to the
post of Constable and promotion of the petitioner against the post of Constable, as far as possible, within a period of four months, after reckoning,
with the applicable rule position and in absence of rules, to executive orders/fait operating in the field in the context of history of petitioner's case
and treatment given to similarly situated and circumstanced employees in the J and K Vigilance Organisation.
This petition is disposed of accordingly. Petitioner is awarded costs quantified at Rs. 1000/ to this petition.