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Judgment
By Hon’ble Mr. Anand Mathur, Member (A)
Learned counsel for the applicant stated that the applicant was appointed as PSI vide Govt. order dated 13.4.1995 and was confirmed as SI vide PHQ order No. 4620/99 dated 15.12.1999. The applicant opted to work on the anti-militancy front in the year 1997. He worked in operation groups of zone Kashmir i.e. North Kashmir, Baramulla and Central Kashmir, Srinagar. The applicant was recommended by the then SP Operations, Srinagar on 18.6.1998 for Out of Turn (OTP) promotion, which was followed by reminders to PHQ by Inspector General of Police vide letters dated 30.11.1999 and 18.4.2001 but the applicant’s citation was not consider. On the contrary, his batchmate PSI Rajni Sharma 4367/NGO was recommended by the then SP, Baramulla on operational grounds and respondent promoted her to the next rank.
Learned counsel for the applicant further stated that applicant was confirmed as SI vide PHQ order No. 4520/99 dated 15.12.99. The applicant submitted a representation through proper channel vide SSG/Sgr/Lines/ 548 dated 27.11.2000 and SSP/ SSG letter No.Estt/.P-Case/12 dated 4.1.2001, with a request to consider his representation/ citation at par with the OTP granted to other officers and his batchmates. Respondents have promoted applicant’s batchmates like PSI Imtiyaz Ahmed 4521/NGO and PSI Sandeep Kour 4540/NGO, but did not consider the representation of the applicant, constrained him to knock the doors of Hon’ble High Court by virtue of SWP 2301/2001. The Hon’ble High Court disposed of the SWP No.2301/2001 on 5.5.2006 on the same facts and law involved in SWP No. 1082/2000 titled Tilak Raj vs. State of J&K , which was decided by the Hon’ble High Court on 23.12.2004, as the case of applicant was found to be fully covered with the case of Tilak Raj (supra).
Respondents, on receipt of Hon’ble Court’s order put the case of the applicant before the designated committee. The designated committee recommended OTP and PHQ issued order No. 3007/2006 dated 29.9.2006 regarding promotion of applicant with immediate effect but no retrospective effect was given to the applicant w.e.f. 18.6.1998.
Not being satisfied with the order passed by the respondents, the Applicant again filed SWP No. 1965/2007 before the Hon’ble High Court, which was disposed of on 15.7.2009 by the Hon’ble High Court with a direction that the applicant may file a representation indicating his grievance and the respondents shall consider the representation and pass appropriate order in accordance with law within a period of two weeks. When the aforesaid order of Hon’ble High Court was not complied with, applicant filed contempt petition No. 77/2010 before the Hon’ble High Court which was withdrawn with liberty to question the rejection order, in terms of order dated 7.7.2015.
Applicant by virtue of Writ Petition No. 762/2017 challenged the rejection order issued in the year 2010. However, an amended writ petition was filed on the basis of fresh cause of action, which was not entertained by the Hon’ble High Court. Therefore, fresh O.A. was filed as O.A. No. 104/2020 and Tribunal vide order dated 25.11.2020, disposed off the O.A., directing the respondents to consider the case of the applicant for retrospective promotion in accordance with law governing the field, within a period of two months from the date of receipt of copy of order, by passing reasoned and speaking order.
In pursuance of order dated 25.11.2020 passed in O.A. No. 104/2020 by this Tribunal, respondent No.2 issued order No. 2607/2021 dated 26.8.2021, rejecting the claim of the applicant.
Applicant by virtue of the present O.A. has sought relief for setting aside the order No. 2607/2021 dated 26.8.2021 passed by respondent No.2 and to accord promotion to the applicant as Inspector w.e.f. 8.6.1998 on the analogy of private respondents. While doing so, respondents may take into consideration the judgment dated 1.7.2014, passed in SWP No. 1493/2009 along with judgment dated 7.5.2016 in SWP No. 320/2015 passed by the Hon’ble High Court in case titled Abdul Khalid Vs. State of J&K and others and pass identical orders in tune with PHQ order No. 1933/2016 dated 25.6.2016.
Learned counsel for the respondents have filed objection and stated that in the year 1998, the applicant during his posting at Baramulla/SOG, Srinagar was recommended by IGP Kashmir Zone to PHQ J&K for out of turn promotion vide letter No.CS/P-SOG/Sgr/99-11301 dated 30.11.99. However, the case did not find acceptance at the relevant point of time as the applicant had not exhibited such outstanding performance, which would have merited for his out of turn promotion on operational grounds and was accordingly consigned to records. Aggrieved of this, the applicant approached the Hon’ble High Court vide SWP No. 2301/2001 seeking quashing of PHQ order No. 1856 of 2020 dated 22.6.2020, wherein his two junior batch mates were promoted out of turn on operational grounds. The applicant did not seek promotion with retrospective effect in the above writ petition. Accordingly, in compliance with the judgment of the Hon’ble High Court, the case of the applicant was considered at PHQ and he was promoted to the rank of Inspector out of turn vide order No. 3007 of 2006 dated 29.9.2006. The applicant again approached the Hon’ble High vide SWP No.1965 of 2007 seeking retrospective effect out of promotion as Inspector w.e.f. 22.6.2000 above his three junior batch mates i.e. Imtiaz Ahmad, Aijaz Ahmad and Sandeep Kaur. The above said writ petition was disposed off by the Hon’ble High Court vide order dated 15.7.2009 and accordingly, in compliance of the aforesaid order, the representation of the applicant was considered at PHQ and after examining the matter, the claim of the applicant was rejected vide PHQ order No. 1230 of 2010 dated 29.3.2010. Therefore, the applicant has no claim because his case has been repeatedly examined and rejected by the respondents.
Learned counsel for the applicant stated that in the minutes of meeting dated 10.4.2021 held in the office chamber of Additional Director General of Police (Coordination) PHQ, J&K, Jammu (Anneuxre R-3), at page 43 of the same, it is clearly stated that the matter was discussed in the committee and the committee recommended to grant the OTP to the petitioner w.e.f. 8.6.1998 notionally, if the case of the petitioner is similarly situated to that of Ab Khalid Khan (Now Dy SP) and others. A detailed speaking order is to be issued.
The applicant has sought the following reliefs:-
8.1An order or direction seeking setting aside of order No.2607 of 2021 dated 26.8.2021 passed by the respondent No.2.
8.2An order or direction directing the respondent, to accord promotion to the applicant as Inspector w.e.f. 8.6.1998 on the analogy of private respondents while doing so respondents may take into consideration the judgment dated 1.7.2014, passed in SWP No. 1493/2009 along with judgment dated 7.5.2016 in SWP No. 320 /2015 passed by the Hon’ble High Court in case titled Abdul Khalid Vs. State of J&K others and pass identical orders in tune with PHQ order No. 1933 /2016 dated 25.6.2016.
8.3Any other order or direction which the Hon’ble Court may deem fit and proper in the given circumstances of this case may also be issued in favour of the applicant and against the respondents, the same would be in consonance with law and justice.
We have heard counsel for both the parties at length and find as under:-
As has been brought out above, it is clear that the applicant as well as his colleagues were found to be meritorious and had performed outstanding feats to deserve out of turn promotion. Accordingly, all of them have been granted out of turn promotion including the applicant but whereas the others have been granted out of turn promotion with retrospective effect, the applicant has been granted out of turn promotion with only prospective effect. He is aggrieved by this discremination.
ii) The respondents had nominated a designated committee to consider his claim for retrospective promotion and the committee vide minutes of meeting dated 10.4.2021 have recommended to grant OTP to the petitioner w.e.f. 8.6.1998 notionally, if the case of the petitioner is similarly situated to that of Ab Khalid Khan (Now Dy SP) and others…
The respondents while passing the impugned speaking order dated 26.8.2021 have rejected the said recommendation of the committee by stating that the case of the applicant is different from that of Ab. Khalid Khan. We find that comparison with another officer’s performance may be valid for the purpose of granting an out of turn promotion but extending the benefit from a back date cannot be made person specific. The benefit of retrospective promotion has to be a common rule for all the employees and cannot differ from person to person.
In view of the above discussion, the impugned order No. 2607/2021 dated 26.8.2021 is hereby quashed. Accordingly, we direct the respondents to extend the benefit of retrospective out of turn promotion to the applicant notionally from 8.6.1998 and monetarily from 29.9.2006 (as already given). This exercise shall be completed within 04 weeks from today.
With the above observations, OA No.1413 of 2021 is allowed.
No order as to costs.