Siddharath Mahajan vs Union Territory Of Jammu & Kashmir & Ors.

Per:- Sanjeev Gupta, Judicial Member

The present Original Application has been filed by the applicant under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The brief facts of the case, as stated in the Original Application are that in pursuance to selection process initiated vide Advertisement Notice No. Pers-A-400-2009/4714-813 dated 29.01.2009, the applicant was appointed as Sub Inspector in the Jammu and Kashmir Police Telecom Department vide Order No:298 of 2010 dated 22.12.2010. That after his selection and appointment, applicant submitted his joining report before the Respondent No.3 on 22.12.2010.

It is further averred that applicant and the private Respondents No:4 to 23, were deputed to the Sher-i-Kashmir Police Academy, Udhampur (in short S.K.P.A) Udhampur for Basic Recruitment Training Course and applicant joined in the said Academy on 28.12.2010, however, during training, applicant suffered injury on his ribs and due to availability of only limited medical facility at S.K.P.A, Udhampur, applicant was not in a position to continue with the training and sought five days casual leave for the purpose of his treatment. The applicant went to District Hospital, Sarwal, Jammu for his treatment and on the advice of Doctors not to exert physically in any manner, applicant had applied for extension of leave before the Director, S.K.P.A, Udhampur on 20.02.2011 vide telegram duly received by the Director, S.K.P.A, Udhampur.

It is further averred that after the applicant fully recovered from injury and became medically fit to undergo training, he reported to the Director, S.K.P.A, Udhampur on 24.03.2011, however, he was told that because of his absence, the training course had moved forward and it cannot be possible for him to continue the course with his batch and, as such, was reverted to the parent department i.e. Director of Police Telecom, Jammu with the advice to join back after the new batch starts.

It is further averred that an enquiry was initiated against the applicant for the period of over-stay of leave from the S.K.P.A, Udhampur as he had proceeded on five days casual leave, which had been duly sanctioned in his favour. The applicant in the inquiry, pleaded not guilty to the summary of allegations and was exonerated of the charges levelled against him in the inquiry conducted by Superintendent of Police Telecom. The period of leave beyond five days was treated as extra ordinary leave without pay by Respondent No. 3 vide order bearing No:314 of 2011 dated 20.06.2011.

It is further averred that after the applicant was exonerated of all the charges, it was established during the course of enquiry that applicant was not at all on fault for not completing the Basic Recruitment Training Couse with his own batch, he was again deputed to undergo the aforesaid course in the year 2013 at S.K.P.A, Udhampur along with wait list candidates of Telecom Wing, Executive Wing and Armed Wing.

It is also averred that applicant successfully completed the Basic Recruitment Training Course after the result was declared by the Director, Sher-i-Kashmir Police Academy, Udhampur vide Order No:258 of 2014 dated 17.07.2014 and applicant was adjudged as all-round best and Ist in Range classification. That, a tentative seniority list of Sub Inspectors of Telecom Cadre as it stood on 01.02.2020 was issued by the Respondent No.2 vide Communication No:Estt./W-9/2016/9341-58 dated 10.02.2020, in which the name of the applicant figured at Serial No.21 and his all other batch matches i.e. private Respondents No. 4 to 23, have been reflected over and above the applicant despite the fact that all the Sub Inspectors figuring from Serial No.1 to Serial No.21 of the tentative seniority list were selected in pursuance to the same selection process and were deputed to undergo the Basic Recruitment Training Course in the same batch.

It is further averred that applicant submitted his objections to the tentative seniority list and requested that his seniority be fixed as per the merit secured by him in the Basic Recruitment Training Course, by treating him also of the same batch of the year 2010, however, Respondent No.2 vide PHQ Order No:1390 of 2020 dated 27.04.2020 had rejected the representation/objections raised by the applicant to the tentative seniority list on the ground that he has undergone Basic Recruitment Training Course in a subsequent chance and cleared the same in the year 2014 i.e. in a subsequent batch as compared to private respondents, who underwent the training in the year 2012 and, as such, applicant was placed at the bottom of his batch of 2010 and in that list, only one candidate figures below the name of the applicant at Serial No.22 as he was appointed by operation of the wait list and was deputed to undergo the Basic Recruitment Training Course along with the applicant in the subsequent batch.

It is further averred that applicant submitted a review petition against the impugned seniority list dated 27.04.2020 but nothing has been done to address the grievance of the applicant.

The applicant is aggrieved of the final seniority list issued vide PHQ Order No:1390 of 2020 dated 27.04.2020 to the extent of his placement at the bottom of the training batch of the year 2010 and applicant is further aggrieved of the fact that he is being treated as a member of separate batch instead of belonging to the same batch of 2010 for the purpose of fixing of his seniority.

The respondents have filed a detailed counter reply in which it has been stated that while undergoing Basic Induction Course at S.K.P.A, Udhampur, the applicant proceeded on casual leave and did not turn up, due to which applicant was marked absent and finally discharged from the S.K.P.A, Udhampur for being at large. That shirking from the Basic Training and long absence, that too, at the threshold of service entails discharged from the service, but a lenient view was taken and the applicant was allowed to resume duties. It is further stated that applicant underwent Basic Induction Course in the year 2014 and on account of settled position that on clearing the Basic Induction Course in subsequent chance, an incumbent will lose his position and cannot claim parity to that of his batchmates who have cleared the Basic Induction Course in the first attempt. Therefore, in the given circumstances, the claim of the applicant being bereft of any force was rejected. It has been further averred that the applicant underwent training subsequently, faced different examination boards with variant questions, as such, he cannot claim for placement in seniority in his batch on the basis of his merit, he obtained in basic Training, but is entitled to be placed at the tail end of his batch as provided in Police Rule 111 (2).

The applicant has filed rejoinder mainly reiterating the averments made in the Original Application. However, it has been stated that syllabus for the examination was same, pattern of examination was also same besides standard for evaluating the candidates was same, as such, applicant is entitled to be given his proper place in the seniority in accordance with merit obtained by him in the Basic Induction Course.

The private respondents have not chosen to contest this Original Application, and Mr. Nonu S Khera, Advocate who has appeared for private respondents did not respond to the notice of appearance sent to him by the Registry on 13.02.2023.

Mr. Rahul Pant, learned Sr. Counsel contended that the reasoning given by the respondents, while rejecting the case of the applicant for his seniority vide impugned order dated 27.04.2020, on the ground that applicant had cleared his Basic Induction Course in subsequent chance, as applicant after proceeding on casual leave did not turn up, who was marked absent and finally discharged from S.K.P.A, Udhampur for being at large, is wrong in as much as, the respondents have failed to consider the fact that the applicant had already been ordered to be treated as on leave and the inquiry officer had given the finding that the applicant was not at large but was undergoing treatment for the rib injury during training, therefore, the impugned order is not sustainable in law.

Learned Sr. Counsel further contended that the applicant had cleared the Basic Recruitment Training Course in the year 2014 with flying colours and was adjudged all-round best as also best marksman, therefore, the seniority of the applicant is required to be fixed with the batch of the year 2010, strictly as per the merit obtained by the applicant in the Basic Recruitment Training Course. According, to learned Sr. Counsel the training course, which was undergone by the applicant was same as undergone by the private Respondents No:4 to 23 in the S.K.P.A, Udhampur and same yardstick for evaluation of each candidate in the training course, was adopted, therefore the merit obtained by the applicant during his training course, as per learned Sr. Counsel, is required to be taken into consideration for fixation of the seniority with his own batch of 2010. It is further urged that there is no other reasoning possible to deny the applicant of his seniority vis-à-vis his batch and the approach adopted by the Respondents No.1 to 3 is absolutely illegal and arbitrary.

Learned Sr. Counsel further contended that the failure on the part of the applicant to complete the training course in the year 2010, was due to reasons beyond his control as the applicant had sustained injury in his ribs while undergoing the said training course and therefore, treating the applicant to be of a subsequent batch as compared to the batch of 2010 is unjust, unreasonable and illegal.

On the other hand, Mr. Rajesh Thapa, learned A.A.G. contended that it is a settled position that on clearing the Basic Induction Course in subsequent chance, the incumbent will loss his seniority position and cannot claim parity to that of his batchmates who have cleared the Basic Induction Course in the first attempt and for said reason applicant was placed at the bottom of the batch as provided in Police Rule 111 (2). The impugned order by virtue of which applicant was placed at the bottom of the seniority list according to Mr. Thapa, is as per rule governing the subject, therefore, Original Application filed by applicant is misconceived which may be dismissed.

Considered the rival submissions and perused the records.

The solitary issue that arises for consideration in this O.A., is , whether the applicant who passed the Basic Induction Course in the subsequent chance at S.K.P.A, Udhampur in the year 2014 in which he was adjudged as best marksman and all round best cadet, would be entitled to be included in the seniority list on the basis of merit obtained in the Basic Induction Course, along with the batch of candidates (private respondents 4 to 23) with whom he was originally deputed for training on 28.12.2010. Admittedly, applicant could not complete the course in the first attempt with his batchmates in the year 2011-2012 after getting selected as Sub Inspector in Jammu & Kashmir Police Telecom department in pursuant to Advertisement Notice No. Pers-A-400-2009/4714-813 dated 29.01.2009. The reason for non completion of course in the year 2011 was due to injury suffered by the applicant on his ribs during the initial phase of training at S.K.P.A, Udhampur and he was allowed to complete the training , along with the batch of candidates deputed for training in the succeeding batch in the year 2013 and successfully completed the training on 17.07.2014

For the sake of repetition, it is reiterated that initially, the applicant was discharged from S.K.P.A, Udhampur for being at large on account of his unauthorized absence w.e.f. 20.02.2011, however, the applicant was exonerated from the charges in an inquiry and period of overstay of applicant from 20.02.2011 to 23.02.2011 (32 days) was treated as extra ordinary leave without pay by Director, Police Telecom J&K (Respondent No. 3). The representation/objection filed by the applicant challenging his placement in the seniority list where he was shown at Sr. No. 21, below his batch, was rejected by the Director General of Police (Respondent No. 2) on the ground that applicant completed his basic training in subsequent chance and, therefore, he cannot claim parity with his batchmates who have cleared the basic training in the first attempt.

It has been contended by Mr. Rahul Pant, learned Sr. Counsel that the impugned final seniority list by virtue of which seniority of applicant was fixed below the respondents no. 4 to 23 by treating applicant belonging to different batch is arbitrary and bad in law. Elaborating his arguments further, it is urged by the learned Sr. Counsel that name of applicant figured among the names of private respondents No. 4 to 23, selected as Sub-Inspectors in Telecome Department of Police vide order dated 22.10.2010, therefore, respondents cannot be permitted to contend that his seniority cannot be determined along with them, particularly when the training course which was undergone by the applicant in subsequent course was same as undergone by respondents No. 4 to 23 in the S.K.P.A, Udhampur. In support of his contention learned Sr. Counsel has cited the case of A. Raghu V/s State of A.P. (2015) 14 SCC 221 and Rule 111 (2) of the Jammu & Kashmir Police Rules, 1960

Rule 111 (2) of the Jammu & Kashmir Police Rules, 1960 is the relevant rule to be followed by the official respondents while fixing the seniority of persons appointed or promoted on the same date. The said Rule reads thus:-

On perusal of the above Rule, it is clear that merit in the training course is relevant for fixing seniority.

In A. Raghu (supra) case, while dealing with an identical controversy in a matter relating to seniority of one Munuswamy who was selected as Sub Inspector in the State of Andhra Pradesh and could not complete his training due to personal reasons with his batchmates with whom he was originally deputed for training at the Police Training College on 15.07.1991, the Hon’ble Apex Court has held that since Munuswamy was allowed to complete his training along with batch of candidates deputed for training in the succeeding batch on 14.06.1992, therefore, his position in the inter se seniority list must be reflected along with his batch matches, according to aggregate of marks obtained by him, on the completion of his training at the Police Training College, in terms of Rule 15 of Andhra Pradesh Police (Civil) Subordinate Rules, 1959.

Rule 15 of the Andhra Pradesh Police (Civil) Subordinate Rules, 1959 deals with seniority and is almost similar to Rule 111(2) of the Jammu & Kashmir Police Rules, 1960, in so far as for purpose of determination of inter se seniority as per aggregate of marks obtained by each probationer, Police Training College.

In the light of authoritative pronouncement of Hon’ble Apex Court in (A Raghu) supra case, we find merit in the submissions advanced by the learned Sr. Counsel for the applicant. The mandate of the Rule 111(2) of the Jammu & Kashmir Police Rules, 1960 is clear and explicit in so far determination of seniority of candidates who had participated in a common process of selection. The inter se seniority, as per the said rule, is to be prepared for those appointed on the same date basing on aggregate of marks obtained by them at the final examination at the Police Training College.

At this juncture, it may also be appropriate to consider submissions of official respondents as to whether the applicant who underwent training at S.K.P.A, Udhampur in the year 2013-2014, was subjected to a separate examination at the end of his training and for said reason, he can derive the benefit of higher marks, he obtained at the end of the examination, even though his batchmates who completed the training in the year 2011-2012 earlier were subjected to a different test.

It is the contention of Mr. Rajesh Thapa, learned A.A.G. that since the training were conducted in two separate years, therefore, marks obtained by applicant and private respondents No. 4 to 23 are not comparable with each other and, it would be unfair to rework the seniority based on such circumstances. Undoubtedly, the two sets of individuals, viz applicant and private respondents No. 4 to 23 who were deputed for training in 2011 and in 2013 were subject to different examinations. Such situation was inherent in circumstances of the case. However, even though examinations were held in different years, indisputably, they were examinations of the same standard. Therefore, it cannot be said that the marks obtained by applicant and private respondents No. 4 to 23 cannot be compared for the purpose of preparing a unified seniority list on the basis of their performance in the Police Academy. In other words, it would be unfair to discriminate applicant merely on the ground that he took examinations, a year later which was admittedly due to the reason that applicant was not medically fit to undergo training with his batchmates in the year 2011-12.

In the peculiar facts and circumstances of the case, we allow the Original Application and quash the PHQ Order No. 1390 of 2020 dated 27.04.2020 issued by Director General of Police (Respondent No. 2) to the extent of fixing the seniority of applicant below respondent No. 4 to 23 and direct the respondents No. 1 to 3, that the position of applicant in the inter se seniority list shall be reflected along with his batchmates viz Respondents No. 4 to 23, according to the merit (aggregate of marks) obtained by him on the completion of his training at the S.K.P.A, Udhampur, in terms of Rule 111(2) of the Jammu & Kashmir Police Rules, 1960. The whole exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

No order so as to costs.